Vikor Scientific, LLC v. Kachina Air, Inc., GAI AIR, LLC F/K/A GSAIC, LLC, AWMR, LLC, AAW Investments, LLC, and Xian Hua "Aaron" Wang

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00103-CV
__________________

VIKOR SCIENTIFIC, LLC, Appellant

V.

KACHINA AIR, INC., GAI AIR, LLC F/K/A GSAIC, LLC, AWMR, LLC,
AAW INVESTMENTS, LLC AND XIAN HUA “AARON” WANG, Appellees

__________________________________________________________________

On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 22-06-07372-CV
__________________________________________________________________

MEMORANDUM OPINION

This is an interlocutory appeal from the denial of Appellant Vikor Scientific,

LLC’s special appearance challenging the trial court’s jurisdiction. Vikor is a South

Carolina limited liability company that performs laboratory diagnostic services for

health care providers and clinicians throughout the country, with its principal place

of business in Charleston, South Carolina. After Creek Crossing Management, LLC

(“Creek Crossing”), individually and derivatively on behalf of Radius Flex

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Logistics, LLC, (“Radius Flex”) filed a lawsuit against Appellants Kachina Air, Inc.,

GAI Air, LLC f/k/a GSAIC, LLC, AWMR, LLC, AAW Investments, LLC, and Xian

Hua “Aaron” Wang (collectively, the “Kachina Parties”), the Kachina Parties filed a

third-party action bringing Vikor into the case based on allegations of civil

conspiracy, money had and received, quantum meruit, and unjust enrichment.

Challenging jurisdiction, Vikor filed a special appearance which the trial court

denied. Because we conclude that the trial court lacks personal jurisdiction over

Vikor, both generally and specifically as to all of the Kachina Parties’ claims, we

reverse the trial court’s order denying Vikor’s special appearance.

Background

On January 9, 2019, Creek Crossing and Vikor entered into a management

services agreement whereby Creek Crossing, as a transportation, freight, and

logistics broker, offered freight management and logistics management and

reporting to Vikor. Vikor agreed to pay Creek Crossing for all shipments facilitated

by Creek Crossing through the agreement. According to the pleadings, Creek

Crossing’s sole member, Gregory Lewis, subsequently decided that his company

could better serve the industry by providing delivery services itself instead of

brokering and outsourcing delivery to third parties, so he began investigating in late

2020 a Part 135 Certificate which would authorize operation as an on-demand air

charter carrier for hire for compensation or profit. A Part 135 Certificate is issued to

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a “certificate holder,” who must meet certain requirements. Lewis was introduced to

Wang by an acquaintance and understood that Wang had expertise in aircraft

operations and several other companies with access to airplanes, airplane hangars

and related facilities, and pilots and related technicians necessary for flying. Creek

Crossing’s petition alleges that in or around May 2021, the acquaintance and Wang

had identified a Part 135 Certificate, and that Wang set up a new company, GAI Air,

for an option to acquire Kachina Air, contingent upon the FAA’s issuing Kachina Air

its then-pending Part 135 Certificate.

On June 2, 2021, Creek Crossing and Kachina Air executed a Joint Venture

Agreement (the “JVA”) creating a newly formed company, Radius Flex Logistics,

LLC. According to the terms of the JVA, prior to a liquidity event, Radius Flex was

to acquire the Part 135 Certificate purchased and managed by Kachina Air, and

Creek Crossing was to assign contracts and revenue to Radius Flex “when

planes\routes are operational as agreed.” According to Creek Crossing’s petition,

Radius Flex tested the operational viability of delivery routes with the planes under

or contemplated to be under the Part 135 Certificate. Creek Crossing obtained

permission from its customers, including Vikor, for Radius Flex to make deliveries

on its behalf. Neither Radius Flex nor Creek Crossing charged the customers

anything for these validation exercises. Creek Crossing alleges that after facilitating

the acquisition of Kachina Air and the Part 135 Certificate in October 2021, Wang,

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individually and through his companies, began to implement a scheme to avoid

financial obligations to Radius Flex and coerce a buyout by Creek Crossing on unfair

terms.

Creek Crossing sued the Kachina Parties, and the Kachina Parties

counterclaimed. The trial court ordered an accounting firm to perform an

independent accounting of Radius Flex. The accounting report states that “Based on

total [Creek Crossing] Sales, Vikor accounts for $7,078,77.12, [sic] 70.4% of [Creek

Crossing’s] recorded Revenues/Sales.” The report also states that

Vikor has not been invoiced to date (December 20, 2022) for any
packages received by Radius Flex and has not made any payments to
Radius Flex for any packages received. Greg Lewis has stated
numerous times that the packages that Radius Flex transported were at
“No Charge” while developing Radius Flex logistics services until
[Vikor is] notified otherwise.

The Kachina Parties amended their pleadings to add Vikor as a third-party

defendant against whom the Kachina Parties assert claims for civil conspiracy,

money had and received, quantum meruit, and unjust enrichment.1 Regarding

jurisdiction, the Kachina Parties’ pleading asserts,

All counter-defendants and third-party defendants have either appeared
in this lawsuit, reside in Texas, do business in Texas, and/ or have
sufficient minimum contacts (both specific and general) with the State
of Texas such that the exercise of jurisdiction over them would not
offend the traditional notions of fair play and substantial justice.

We note that civil conspiracy is not an independent tort but a theory of
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vicarious liability. See Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d
136, 141 (Tex. 2019).
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In response, Vikor filed a special appearance, asking the court to dismiss Vikor

for lack of personal jurisdiction. The special appearance asserts that the Kachina

Parties’ jurisdictional allegations are conclusory and that the Declaration of Dan

Nodes attached to Vikor’s special appearance negates any factual basis for personal

jurisdiction over Vikor. Vikor’s special appearance argues that Vikor is “at home” in

South Carolina, that it does not engage in “continuous and systematic” contacts in

Texas, and that its mere relationship with Creek Crossing “is insufficient to confer

specific jurisdiction over Vikor in Texas[,]” because “the operative facts of this

lawsuit involve a failed business venture undertaken jointly by the other parties to

this litigation not Vikor[.]”Vikor supported its special appearance with the

declaration of Dan Nodes, who states,

I am the Chief Operating Officer of Third-Party Defendant Vikor
Scientific, LLC (“Vikor”). Vikor is not a Texas entity. It is South
Carolina limited liability company with its principal place of business
in Charleston, South Carolina.

[…]

While Vikor performs testing services for health care providers and
clinicians located throughout the country, Vikor’s headquarters and
principal place of business is in Charleston, South Carolina. Vikor does
not maintain any offices in the State of Texas.

Vikor entered an agreement with Plaintiff Cross Creek Management,
LLC (“CCM”), for freight management services on January 7, 2019,
and has complied with the terms of its agreement with CCM, at all times
since. Vikor has never had a contract or other form of agreement with
any of the Third-Party Plaintiffs for freight management services and
has no knowledge of the terms of any contract or agreement that exists
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or may have existed between the other parties to this lawsuit, including
Third-Party Plaintiffs and Plaintiff CCM.

The Kachina Parties filed a Supplement to the First Amended Counterclaim

and Third-Party Claim in which they alleged the following supplemental

jurisdictional facts:

• Vikor is a South Carolina molecular diagnostics company that performs
laboratory diagnostic services for health care providers throughout the United
States and Texas.

• Vikor has purposefully targeted the Texas market, has done business in Texas
and has substantial continuous and systematic activity in Texas.

• Vikor has committed a tort in whole or in part in Texas.

• Vikor provides its services to almost 1,000 medical provider accounts in
Texas.

• Vikor markets and solicits business from its Texas accounts. Vikor has
received thousands of lab samples from Texas.

• Vikor has been in a contractual relationship with defendant Creek Crossing
LLC (a Texas company) for freight management services since January 2019,
that included the delivery of packages by Radius Flex from Texas.

• Vikor has recruited, hired, staffed and maintained 28 employees in Texas who
solicit sales and market Vikor services in Texas.

• Vikor maintains a website available to Texas residents.

• Vikor’s website contains a customer portal where its Texas customers can and
have requested packages to be picked up in Texas and delivered to Vikor.

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The Kachina Parties also filed a response to Vikor’s Special Appearance in

which they include the following jurisdictional evidence: (1) Vikor’s responses to

Kachina’s Requests for Admission; (2) Vikor’s Responses to Kachina’s

Interrogatories; (3) Declaration of Loma Sedehi and its Exhibits; (4) The May 28,

2023 report of PBL Services, LLC; (5) Radius Flex JVA Agreement; (6) Vikor –

Creek Crossing Contract; (7) Order overruling Vikor Special Appearance in

Freightpop, Inc. v. Creek Crossing Management LLC, Gregory J. Lewis, Radius

Flex, LLC and Vikor Scientific, LLC, Cause No. 23-09-1415, in the 457th District

Court, Montgomery County, Texas; and (8) Excerpts from Vikor’s website.

In their response, the Kachina Parties argue general jurisdiction exists because

of the supplemental jurisdictional facts asserted in their Supplement to the First

Amended Counterclaim and Third-Party Claim. The Kachina Parties also argue the

trial court has specific jurisdiction over Vikor because Vikor purposefully availed

itself of conducting business in Texas by targeting and selling its services to Texas

customers and employing a large sales team in Texas to market Vikor’s services to

Texas customers. Moreover, the Kachina Parties argue that a “substantial

connection” exists between Vikor’s Texas business and the operative facts of the

case because the jurisdictional facts show that: (1) Vikor has had a contractual

relationship with Creek Crossing since 2019; (2) Vikor did $7 million worth of

business with Creek Crossing in 2022, which was 70% of Creek Crossing’s total

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revenue that year; (3) Creek Crossing promised to hand over its contract with Vikor

to Radius Flex; (4) the basis of the formation of Radius Flex was Creek Crossing’s

contract with Vikor; (5) Vikor had dozens of employees in Texas and marketed in

Texas; (6) the packages delivered to Vikor by Radius Flex on AMWR airplanes at

Lewis’s and Creek Crossing’s direction form the basis of the claims against Vikor;

and (7) the only packages in Radius Flex’s history were delivered to Vikor.

The evidence attached to the Kachina Parties’ response includes Vikor’s

Answers to the Kachina Parties’ Requests for Admission. In those, Vikor admits that

twenty-eight of its employees resided in Texas, worked for Vikor, and conducted

marketing activities for Vikor in Texas from approximately 2020 to 2023. Vikor also

admits that its customers can and have reordered supplies and can and have requested

packages be picked up from them in Texas and delivered to Vikor through Vikor’s

website.

In Vikor’s Answers to the Kachina Parties’ First Set of Interrogatories, Vikor

provides the following information:

• During the period noted by the Kachina Parties, Vikor serviced
998 accounts in Texas, which represented 11.5% of all accounts.

• Vikor’s sales representatives would meet with physician
practices to describe the benefits of Vikor’s laboratory testing
services.

• Vikor identified thirty employees likely engaged in marketing
activities on behalf of Vikor.

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• On December 31, 2022, Vikor had 293 employees, 14 of whom
identified Texas as their resident state (less than 5% of employee
count).

Vikor filed a reply responding to the Kachina Parties’ supplemental

jurisdictional allegations, arguments and evidence. The trial court overruled Vikor’s

Special Appearance. Vikor filed its Notice of Appeal ten days later.

Personal Jurisdiction

For any court to render a binding judgment, it must have jurisdiction over both

the subject matter and the parties. Luciano v. SprayFoamPolymers.com, LLC, 625

S.W.3d 1, 7-8 (Tex. 2021). Subject matter jurisdiction is not disputed in this case,

but Vikor asserts the trial court lacks personal jurisdiction over it. Nonresidents, such

as Vikor, are subject to personal jurisdiction in Texas courts only if such jurisdiction

is authorized by statute and only when the exercise of jurisdiction over the

nonresident is consistent with the due-process guarantees of the United States

Constitution. Id. at 8.

Known as the “long-arm statute,” Chapter 17 of the Texas Civil Practice and

Remedies Code provides a framework for Texas courts to serve process on, and

exercise personal jurisdiction over, nonresidents who do business in Texas. Section

17.042 provides,

In addition to other acts that may constitute doing business, a
nonresident does business in this state if the nonresident:

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(1) contracts by mail or otherwise with a Texas resident and either party
is to perform the contract in whole or in part in this state;

(2) commits a tort in whole or in part in this state; or

(3) recruits Texas residents, directly or through an intermediary located
in this state, for employment inside or outside this state.

Tex. Civ. Prac. & Rem. Code Ann. § 17.042. But even when a nonresident engages

in such activities, a Texas court may not exercise jurisdiction over the nonresident if

doing so would violate constitutional due process. Michiana Easy Livin’ Country,

Inc. v. Holten, 168 S.W.3d 777, 788 (Tex. 2005). Because the statute broadly

includes “other acts that may constitute doing business,” the Texas Supreme Court

has held, “The broad language of the long-arm statute’s ‘doing business’

requirement permits the statute to reach as far as the federal constitutional

requirements of due process will allow.” Guardian Royal Exch. Assurance, Ltd. v.

English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991) (internal citation

omitted); see also Tex. Civ. Prac. & Rem. Code Ann. § 17.042. Consequently, to

determine whether a Texas court may exercise personal jurisdiction over a

nonresident in a particular case, the court need only determine whether doing so

would be “consistent with federal constitutional requirements of due process[.]” Id.

Constitutional due process is satisfied when the nonresident “ha[s] certain minimum

contacts with [Texas] such that the maintenance of the suit [in Texas] does not offend

‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v.

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Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457,

463 (1940)); see also Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 657 (Tex.

2010).

General Jurisdiction

A defendant’s contacts may support either general personal jurisdiction or

specific personal jurisdiction. See Moncrief Oil Int’l, Inc. v. OAO Gazprom Export,

LLC, 414 S.W.3d 142, 150 (Tex. 2013). General jurisdiction arises when a

defendant’s contacts with the forum state are so “continuous and systematic” that

the defendant is “essentially at home[ ]” in the forum state. State v. Volkswagen

Aktiengesellschaft, 669 S.W.3d 399, 412 (Tex. 2023) (citations omitted). This kind

of personal jurisdiction allows courts to render a binding judgment against a

defendant even if the plaintiff’s claims neither arise from activities conducted in the

forum state nor “‘relate to the forum [s]tate or the defendant’s activity there.’” Id.

(quoting Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351 (2021)).

General jurisdiction requires a more demanding minimum-contacts analysis

than specific jurisdiction does, and the nonresident defendant must have conducted

substantial activities within the forum. BMC Software Belgium, N.V. v. Marchand,

83 S.W.3d 789, 797 (Tex. 2002). “General jurisdiction is premised on the notion of

consent. That is, by invoking the benefits and protections of a forum’s laws, a

nonresident defendant consents to being sued there.” Am. Type Culture Collection,

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Inc. v. Coleman, 83 S.W.3d 801, 808 (Tex. 2002). The plaintiff must establish more

than isolated or sporadic visits with the forum before such contacts will constitute

the type of continuous, systematic, and substantial contacts necessary for general

jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,

415-19 (1984). Recognizing that Vikor is a limited liability company rather than a

corporation, we nevertheless find it instructive that

[t]he “paradigm” forums in which a corporate defendant is “at home,”
are the corporation’s place of incorporation and its principal place of
business. The exercise of general jurisdiction is not limited to these
forums; in an “exceptional case,” a corporate defendant’s operations in
another forum “may be so substantial and of such a nature as to render
the corporation at home in that State.”

BNSF Ry. v. Tyrrell, 581 U.S. 402, 413 (2017) (cleaned up) (citing Daimler AG v.

Bauman, 571 U.S. 117, 137, 139 n.19 (2014)).

Specific Jurisdiction

A Texas court can exercise specific jurisdiction over a nonresident defendant

when two conditions are met: (1) the defendant engages in some act by which it

purposefully avails itself of the privilege of conducting activities in Texas, and (2)

the plaintiff’s claims arise out of or relate to those Texas contacts. Volkswagen

Aktiengesellschaf, 669 S.W.3d at 412 (citing Ford Motor Co., 592 U.S. at 352;

Luciano, 625 S.W.3d at 8-9; see also Moki Mac River Expeditions v. Drugg, 221

S.W.3d 569, 576, 579 (Tex. 2007) (specific-jurisdiction analysis involves two co-

equal components: purposeful availment and relatedness)).
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Purposeful Availment

“At its core, the purposeful availment analysis seeks to determine whether a

nonresident’s conduct and connection to a forum are such that it could reasonably

anticipate being haled into court there.” Moncrief Oil, 414 S.W.3d at 152. “This

analysis focuses on the quality and nature of the contacts, not just the quantity.” Id.

at 154. Focusing on the “quality and nature” of the nonresident’s contacts with

Texas, we are guided by three principles when analyzing purposeful availment:

First, only the defendant’s contacts with the forum are relevant, not the
unilateral activity of another party or a third person.

Second, the contacts relied upon must be purposeful rather than
random, fortuitous, or attenuated.

[…]

Finally, the defendant must seek some benefit, advantage or profit by
availing itself of the jurisdiction.

Moki Mac, 221 S.W.3d at 575 (internal quotation marks and citations omitted); see

also Am. Type, 83 S.W.3d at 806 (“It is the quality and nature of the defendant’s

contacts, rather than their number, that is important to the minimum-contacts

analysis.”).

Relatedness

“The ‘arise from or relate to’ requirement lies at the heart of specific

jurisdiction by defining the required nexus between the nonresident defendant, the

litigation, and the forum.” Moki Mac, 221 S.W.3d at 579. “[F]or a nonresident
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defendant’s forum contacts to support an exercise of specific jurisdiction, there must

be a substantial connection between those contacts and the operative facts of the

litigation.” Id. at 585. “‘Even a single purposeful contact may be sufficient to meet

the requirements of minimum contacts when the cause of action arises from the

contact.’” Michiana, 168 S.W.3d at 795 (quoting Micromedia v. Automated Broad.

Controls, 799 F.2d 230, 234 (5th Cir. 1986)).

Special Appearance

The Kachina Parties, as third-party plaintiffs, bore “the initial burden to plead

sufficient allegations to bring the nonresident defendant within the reach of Texas’s

long-arm statute.” Kelly, 301 S.W.3d at 658. To challenge the court’s personal

jurisdiction, the nonresident defendant – or in this case, Vikor, as the nonresident

third-party defendant – must file a special appearance before any other pleading or

motion. See Tex. R. Civ. P. 120a. A special appearance must be supported by

affidavit. Id. When a plaintiff’s petition includes no jurisdictional facts, the

defendant may defeat jurisdiction merely by proving he does not reside in Texas.

Kelly, 301 S.W.3d at 658-59. The plaintiff, however, may amend the petition to

include jurisdictional facts “thereby allowing jurisdiction to be decided based on

evidence rather than allegations, as it should be.” Id. at 659. “Once the plaintiff has

pleaded sufficient jurisdictional allegations, the defendant filing a special

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appearance bears the burden to negate all bases of personal jurisdiction alleged by

the plaintiff.” Id. at 658.

A defendant may attack the plaintiff’s jurisdictional allegations factually,

legally or both. Id. at 659. Factually, the defendant can present evidence negating

the alleged contacts with Texas, thereby shifting the burden back to the plaintiff to

respond with evidence to support its jurisdictional allegations. Id. at 658-59.

“Legally, the defendant can show that even if the plaintiff’s alleged facts are true,

the evidence is legally insufficient to establish jurisdiction[.]” Id. at 659.

Rule 120a(3) requires a trial court to “determine the special appearance on the

basis of 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.” Tex. R. Civ. P. 120a(3). If the trial court grants

the special appearance, the nonresident defendant is dismissed from the case, and an

ordinary appeal may be filed by the plaintiff. If, as in this case, the trial court denies

the special appearance, the nonresident defendant may file an interlocutory appeal.

See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7). On appeal we conduct a de

novo review of the trial court’s ruling, because personal jurisdiction is a question of

law. Am. Type, 83 S.W.3d at 805-06. The scope of our review includes all evidence

in the record. See Phillips Dev. & Realty, LLC v. LJA Eng’g, Inc., 499 S.W.3d 78,

85 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); Wise v. Nims, No. 09-95-

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00214 CV, 1996 Tex. App. LEXIS 4835, at *5 (Tex. App.—Beaumont Oct. 31,

1996, no writ) (not designated for publication). “When the trial court does not issue

findings of fact, reviewing courts should presume that the trial court resolved all

factual disputes in favor of its judgment.” Am. Type, 83 S.W.3d at 806. “When the

appellate record includes the reporter’s and clerk’s records, these implied findings

are not conclusive and may be challenged for legal and factual sufficiency in the

appropriate appellate court.” BMC Software, 83 S.W.3d at 795 (citations omitted).

Analysis

Vikor argues on appeal that the trial court erred in denying its special

appearance, challenging—as it must—both general and specific jurisdiction.

General Jurisdiction

Vikor argues that it is not “essentially at home” in Texas and that there are no

forum contacts shown in the record that would authorize the district court to exercise

general jurisdiction over the non-resident, Vikor. Moreover, Vikor emphasizes it is

organized under the laws of, has its principal place of business in, and is only “at

home” in South Carolina. The Kachina Parties argue there is general jurisdiction

over Vikor because Vikor has substantial, continuous corporate operations in Texas.

They point to the jurisdictional facts asserted in their Supplement to the First

Amended Counterclaim and Third-Party Claim which include Vikor’s marketing,

business, and website activities in Texas. At oral argument, the Kachina Parties

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acknowledged that a showing of general jurisdiction requires exceptional

circumstances but reasoned that there are such circumstances in this case because

eleven percent of Vikor’s accounts are located in Texas, and seventy percent of

Creek Crossing’s revenue in 2022 came from Vikor.

We do not agree with the Kachina Parties that Vikor’s contacts with the State

of Texas – whether that be through its relationship with Creek Crossing or through

its other business activities – are so continuous, systematic and substantial that they

establish that Vikor is “essentially at home” and subject to general jurisdiction in

Texas. See, e.g., Daimler AG, 571 U.S. at 127; Old Republic Nat’l Title Ins. Co. v.

Bell, 549 S.W.3d 550, 565 (Tex. 2018). The parties do not dispute that Vikor is

organized under the laws of South Carolina and has its principal place of business

there. These facts are generally regarded as the hallmark of general jurisdiction. See

Daimler AG, 571 U.S. at 138-139 (quoting Goodyear Dunlop Tires Operations, S.A.

v. Brown, 564 U.S. 915, 919 (2011)); see also Ford Motor Co., 592 U.S. at 359;

Ford Motor Co. v. Cejas, No. 09-16-00280-CV, 2018 Tex. App. LEXIS 1389, at

*26-27 (Tex. App.—Beaumont Feb. 22, 2018, no pet.) (mem. op.). Because Vikor

is neither incorporated nor has its principal place of business in Texas, Vikor is not

“at home” in Texas unless its other contacts with Texas are so systematic, continuous

and substantial that this case is “exceptional.”

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We are not persuaded that because eleven percent of Vikor’s business

accounts are located in Texas exceptional circumstances exist to justify general

jurisdiction. This necessarily means eighty-nine percent of Vikor’s business

accounts are located outside the state of Texas. “A corporation that operates in many

places can scarcely be deemed at home in all of them.” Daimler AG, 571 U.S. at

138, 140 n.20 (characterizing exercise of general jurisdiction in every state in which

corporation “engages in a substantial, continuous, systematic course of business” as

“unacceptably grasping”).

Similar reasoning applies to the Kachina Parties’ argument that seventy

percent of Creek Crossing’s revenue comes from Vikor. The seventy-percent figure

is derived by dividing the amount of Creek Crossing’s revenue from Vikor by the

amount of Creek Crossing’s total revenue. Therefore, Vikor could do the same

amount of business with Creek Crossing from year-to-year, and according to the

Kachina Parties’ argument, Vikor would be more or less “at home” in Texas

depending on the amount of business Creek Crossing did with other entities. General

jurisdiction must rest on the defendant’s contacts, not some third party’s contacts,

with the forum. See Moncrief Oil, 414 S.W.3d at 150.

Therefore, based on the record before us, we cannot say that Vikor’s

“‘affiliations with the State are so ‘continuous and systematic’ as to render [Vikor]

essentially at home in the forum State.’” See Daimler AG, 571 U.S. at 139 (quoting

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Goodyear, 564 U.S. at 919). We conclude that there is no general jurisdiction over

Vikor. See id.

Specific Jurisdiction

Vikor argues there is no substantial connection between Vikor’s contacts in

Texas and the operative facts of the litigation. “The operative facts are those on

which the trial will focus to prove the liability of the defendant who is challenging

jurisdiction.” Kaye/Bassman Int’l Corp. v. Dhanuka, 418 S.W.3d 352, 357 (Tex.

App.—Dallas 2013, no pet.); see also Moki Mac, 221 S.W.3d at 588 (“[T]he injuries

for which the Druggs seek recovery are based on Andy’s death on the hiking trail in

Arizona, and the relationship between the operative facts of the litigation and Moki

Mac’s promotional activities in Texas are simply too attenuated to satisfy specific

jurisdiction’s due-process concerns.”). Vikor argues the Kachina Parties’ claims for

conspiracy, money had and received, quantum meruit, and unjust enrichment did not

arise from, and are unrelated to, Vikor’s activities in Texas, but arise out of the JVA

to which it was not a party. Vikor also claims that the Kachina Parties are

impermissibly relying on the unilateral activity of other parties, such as Creek

Crossing, in an attempt to establish purposeful availment.

The Kachina Parties argue Vikor has purposefully availed itself of conducting

business in Texas by: performing laboratory diagnostic services for almost 1,000

medical providers in Texas; marketing and soliciting business from its Texas

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accounts; hiring and maintaining twenty-eight employees in Texas who solicit sales

and market Vikor’s services in Texas; receiving thousands of lab samples from

Texas; maintaining a website available to Texas residents, with a customer portal

that has been used by Texas customers to request that lab samples be picked up in

Texas and delivered to Vikor; and having a contractual relationship with Creek

Crossing (a Texas company) for freight management services since January 2019

that includes delivery of packages by Radius Flex from Texas. They argue a

substantial connection exists between Vikor’s activities in Texas and the operative

facts of the lawsuit, pointing primarily to Vikor’s twenty-eight employees in Texas

and its contractual relationship with Creek Crossing. Therefore, we will first address

these two contacts in the context of the purposeful availment and relatedness

inquiries.

Vikor’s Contract with Creek Crossing

Creek Crossing and Vikor entered into a Management Services Agreement

(“MSA”) on January 9, 2019. The terms of the agreement state that Vikor will supply

Creek Crossing a list of daily pickup addresses and pickup days for its packages, that

Creek Crossing will invoice Vikor on a weekly basis, and that Vikor will pay Creek

Crossing by credit card. About a year and a half into the MSA, Creek Crossing and

Kachina Air entered into the JVA to form Radius Flex in June 2021. Paragraphs nine

and ten of the JVA indicate the MSA was assigned to, and became the asset of,

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Radius Flex. The Kachina Parties argue that Vikor knew about Creek Crossing’s

entering into the JVA with Kachina and that because the MSA was pulled into the

JVA, the controversy in this case is related to Vikor’s purposeful activities of

obtaining logistics services from Creek Crossing, a Texas entity, via the MSA.

We are not persuaded by the Kachina Parties’ arguments, because even if we

were to conclude that Vikor purposely availed itself of the benefits of doing business

in Texas by entering into the MSA with Creek Crossing, the Kachina Parties’ claims

arise out of or relate to the JVA between the Kachina Parties and Creek Crossing,

not the MSA between Creek Crossing and Vikor. See Moki Mac, 221 S.W.3d at 579,

582, 585.

First, Creek Crossing’s assignment of the MSA to Radius Flex was the

unilateral activity of third parties, namely Creek Crossing and Kachina, which is

insufficient to qualify as purposeful availment. See Guardian Royal Exch.

Assurance, Ltd., 815 S.W.2d at 227-28 (noting that to qualify as a minimum contact,

“the contact must have resulted from the nonresident defendant’s purposeful conduct

and not the unilateral activity of the plaintiff or others”); see also Michiana, 168

S.W.3d at 785. Given the facts presented, Vikor’s contacts with Texas relative to the

JVA were fortuitous since it was the activity of Creek Crossing and Kachina, not

Vikor, which led to the JVA. The assignment of the MSA to Radius Flex, Vikor’s

purported knowledge about the joint venture, and Vikor’s acceptance of free

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shipping all amount to passive acquiescence, not purposeful availment. 2 Creek

Crossing’s unilateral choice to partner with the Kachina Parties does not warrant the

conclusion that Vikor made purposeful contact with Texas. See Michiana, 168

S.W.3d at 788 (holding that responding to a telephone call from the forum state and

sending payment to the forum state do not establish minimum contacts for

jurisdictional purposes).

Second, even if the MSA constituted purposeful availment, the Kachina

Parties’ claims of civil conspiracy, money had and received, quantum meruit, and

unjust enrichment do not arise out of or relate to the MSA; instead, they arise out of

the JVA. See Moki Mac, 221 S.W.3d at 579, 582, 585. The Kachina Parties’

pleadings allege:

This lawsuit is about the illegal and/or uncompensated use of aircraft
belonging to AWMR and/or leased to Kachina to support the Radius
Flex business (jointly owned by Kachina and [Creek Crossing],
45%/55%). This lawsuit is filed to compensate Counter-Plaintiffs for
the use of the planes in the past, well over 600 flights, damages caused
to the planes, unjust enrichment received by [Creek Crossing] and
Vikor for delivery of packages without compensation, and recovery of
damages for the numerous false statements on which [the Kachina
Parties] relied when deciding to support and contribute to the Radius
Flex project, and for other damages incurred. Additionally, [the
Kachina Parties] seek to declare the purported agreement involved is

2
Our review of the record does not show that Vikor had knowledge that Creek
Crossing and Kachina Air entered into a JVA but rather Vikor knew from Creek
Crossing that the packages Radius Flex transported were at “no charge” while
Radius Flex logistics services were being developed. Regardless of whether Vikor
knew of the joint venture or not, passive knowledge that Creek Crossing and Kachina
Air entered into a JVA is not activity by Vikor.
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illegal and, thus, void and unenforceable, and to obtain other
declarations from this Court necessary to terminate [Radius Flex]
and/or terminate Kachina’s interest in and/or obligations to or for
[Radius Flex].

[. . .]

At the center of this case is a purported agreement between Kachina
and [Creek Crossing] to form and operate [Radius Flex]. This was
supposedly done via the JVA.

The MSA between Vikor and Creek Crossing is not at the heart of this controversy.

Neither party to the MSA has sued the other, and no party alleges any term of the

MSA was breached. Instead, the Kachina Parties allege that they were induced by

representations made by Creek Crossings to enter into an allegedly void JVA, to

which Vikor was not a party, and that Vikor received free shipping of packages

transported on Kachina’s and AMWR’s planes pursuant to the allegedly void JVA.

Based on these factual allegations, the Kachina Parties allege that Vikor “conspired”

with Creek Crossing, that Vikor “holds money belonging to [the Kachina Parties] in

equity and good conscience[,]” that Vikor accepted services from Kachina and

AWMR with reasonable notice that they expected to be compensated, and that Vikor

“obtained [a] benefit by fraud, or duress or because the contemplated JVA is

unenforceable, impossible, thwarted by mutual mistake and/or void because it is

illegal.” None of these claims arises out of the MSA between Vikor and Creek

Crossing.

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We conclude Vikor’s contract with Creek Crossing, which was assigned to

Radius Flex under the JVA, does not justify specific jurisdiction over Vikor, because

the operative facts of the Kachina Parties’ claims are unrelated to that contract.

Therefore, the MSA does not satisfy the relatedness test. See id. at 579, 585.

Vikor’s Twenty-eight Texas Employees

In response to the Kachina Parties’ request for admissions, Vikor admitted

twenty-eight of its employees resided in Texas during the relevant time period.

These employees conduct marketing activities for Vikor in Texas. Vikor described

in its response to the Kachina Parties’ interrogatories that Vikor’s sales

representatives meet with medical practices in Texas to describe the benefits of

Vikor’s laboratory testing services. On December 31, 2022, Vikor had 293

employees, and fourteen (less than five percent) identified Texas as their place of

residence.

We conclude the evidence is sufficient to establish Vikor purposefully availed

itself of the benefits of doing business in Texas by maintaining employees who

conduct marketing activities in Texas. Vikor initiated the contact by seeking out

medical practices in Texas to describe the benefits of its laboratory testing services.

These contacts are purposeful and not random, fortuitous, or attenuated. See id. at

575. That said, our analysis does not end with purposeful availment because “the

exercise of specific jurisdiction is prohibited if ‘the suit’ does not ‘aris[e] out of or

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relat[e] to the defendant’s contacts with the forum.’” Luciano, 625 S.W.3d at 14

(quoting Bristol-Myers Squibb Co. v. Superior Ct. of Cal., San Francisco Cnty., 582

U.S. 255, 262 (2017)).

According to the Kachina Parties’ pleadings, the heart of the controversy is

the uncompensated use of Kachina’s airplanes to make deliveries to Vikor pursuant

to the JVA between Creek Crossing and Kachina Air. The lawsuit is not about the

marketing efforts of Vikor’s sales force in physicians’ offices in Texas, and the

Kachina Parties’ claims of conspiracy, money had and received, quantum meruit and

unjust enrichment will not be advanced by introducing evidence of the marketing

activities of Vikor’s twenty-eight Texas employees.

In oral argument, the Kachina Parties argued there would have been no need

to use Kachina’s and AWMR’s planes to fly lab samples to Vikor but for Vikor’s

employees’ convincing physicians’ offices to use Vikor’s laboratory services in the

first place. However, the Texas Supreme Court has rejected but-for relatedness as a

basis for specific jurisdiction. Moki Mac, 221 S.W.3d at 581 (“We agree with those

courts and commentators who view the but-for test as too broad and judicially

unmoored to satisfy due-process concerns.”). The Court explained, “Moki Mac’s

promotional representations, while theoretically related to Andy’s injury on the

hiking trail in the sense that but for them he might not have been there, are not

sufficiently related to the operative facts underlying Andy’s injury for which the

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Druggs seek recovery in wrongful death to sustain the exercise of specific

jurisdiction.” Id. at 588. We conclude that the relationship, if any, between Vikor’s

employees in Texas and the operative facts of the litigation is simply too indirect,

tangential and attenuated to satisfy specific jurisdiction’s due-process concerns. Id.

For the same reasons, we conclude Vikor’s other activities (receiving lab

samples from medical providers in Texas, performing laboratory diagnostic services

for those providers, and maintaining a website with a customer portal whereby Texas

customers request that lab samples be picked up in Texas and delivered to Vikor),

which were mentioned in the Kachina Parties’ pleadings but not emphasized in its

briefing or oral argument, are also insufficient to establish specific jurisdiction

because the operative facts of the Kachina Parties’ claims against Vikor are not

sufficiently related to those activities.

Conclusion

Having found no basis for either general or specific personal jurisdiction over

Vikor, we sustain Vikor’s issues on appeal. We reverse the trial court’s order

denying Vikor’s special appearance and render the judgment the trial court should

have rendered, dismissing the Kachina Parties’ claims against Vikor for lack of

personal jurisdiction. See Tex. R. App. P. 43.2(c).

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REVERSED AND RENDERED.

KENT CHAMBERS
Justice

Submitted on September 25, 2025
Opinion Delivered December 4, 2025

Before Golemon, C.J., Wright and Chambers, JJ.

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