Case No. 01-15-00300-CV

________________________________ IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS

_________________________________ SUMMIT INDUSTRIAL CONS TRUCTION L.L.C. Appellant

v. UTICA EAST OHIO MIDSTREAM L.L.C. Appellee

_________________________________ On appeal from the 190th Judicial Di strict Court of Harris County, Texas The Honorable Patricia J. Kerrigan Presiding

_________________________________ 

## REPLY BRIEF OF APPELLANT

_________________________________ Oral Argument is Requested

R. Carson Fisk State Bar No. 24043659
FORD NASSEN & BALDWIN P.C. 111 Congress Ave., Suite 1010 Austin, Texas 78701 512.236.0009 (telephone) 512.236.0682 (facsimile) rcfisk@fordnassen.com ACCEPTED 01-15-00300-CV FIRST COURT OF APPEALS

HOUSTON, TEXAS 8/3/2015 3:25:28 PM CHRISTOPHER PRINE

CLERKi TABLE OF CONTENTS INDEX OF AUTHORITIES ................................................................................. iii GUIDE TO CITATIONS AND ABBREVIATIONS ............................................ v REPLY TO UEOM FACTUAL MISSTATEMENTS ......................................... 1
A. The nature of Summit’s damages re mains an open question and Summit respectfully requests that the Court, to avoid any future confusion, not adopt UEOM’s inaccurate descrip tion of Summit’s claim ....................................... 1
B. UEOM did, in fact, previously co mpensate Summit for delays ...................... 3
C. Summit’s principal place of busin ess is located in Georgia ............................ 6
D. UEOM delayed Summit during the Project..................................................... 7 REPLY ARGUMENT ............................................................................................. 8
I. UEOM has broken its agreement with Ohio and has breached the Contract regarding forum ............................................................................................... 8
II. As the key issue in this appeal is fo rum, not choice of law, enjoining Summit does not protect Texas public policy—it contra venes it ............................... 12
III. The question of how a Texas court woul d rule on UEOM’s legal defense is not resolved, therefore no ground for an injunctio n exists ............................ 16
IV. UEOM’s new arguments do not suppor t a finding that Summit’s actions were harassing a nd vexati ous ........................................................................ 18
V. There is no threat to Texas juri sdiction ......................................................... 20
VI. A ruling in favor of UEOM will endorse th e violation of law of a sister state, is contrary to the public policy of both states, and is inconsistent with the principle of comity ......................................................................................... 24
VII. Chapter 271 of the Texas Business a nd Commerce Code does not prohibit consideration of ot her states ’ laws................................................................. 26ii VIII. Texas has no true intere st in this case ........................................................... 27 CONCLUSION ....................................................................................................... 28 PRAYER ................................................................................................................. 29iii INDEX OF AUTHORITIES Statutes
Texas Tex. Bus. & Com. C ode § 271.005( b) ..................................................................... 26
Tex. Bus. & Com. C ode § 272.001(b) ................................................................. 9, 25 Tex. Civ. Prac. & Rem . Code § 15.11 ....................................................................... 9 Tex. Prop. Code § 53.154 .......................................................................................... 9 Tex. Prop. Code § 53.157 .......................................................................................... 9 Tex. Prop. Code § 53.175 .......................................................................................... 9 Tex. Prop. Code § 53.239 .......................................................................................... 9 Ohio Ohio Revised Code 4113.62 ................................................... 8, 9, 12, 14, 22, 25, 26 Cases
Texas Abor v. Black, 695 S.W.2d 564 (T ex. 1985) .................................................................................... 13 Amer. International Specialty Line s Ins. Co. v. Triton Energy Ltd. , 52 S.W.3d 337 (Tex. App.—Dallas 2001, pet. dism’d w.o.j.) .......................... 18, 21 Christensen v. Integrity Ins. Co. , 719 S.W.2d 161 (Tex . 1986) .................................................................................... 22 Continental Oil & Cotton Co. v. E. Van Winkle Gin & Machine Works , 131 S.W. 415 (Tex. Civ. A pp. 1910, writ ref’d) ...................................................... 10iv Gannon v. Payne , 706 S.W.2d 304 (Tex . 1986) .................................................................................... 22 Golden Rule Ins. Co. v. Harper , 925 S.W.2d 649 (Tex. 1996) ........................................................................ 16, 22, 24 Great American Insurance Co. v. Laney , 488 S.W.2d 481 (Tex. Civ. App.—F ort Worth 1972 ) ....................................... 10, 22 Manufacturers Hanover Trust Co . v. Kingston Investors Corp. , 819 S.W.2d 607 (Tex. App.—Houston [1 st Dist.] 1991, no writ) .......................... 18 Powell Elec. Sys. v. Hewlett Packard Co. , 356 S.W.3d 113 (Tex. App.—Houston [1 st Dist.] 2011, no pet.) ............................. 2 Rouse v. Tex. Capital Bank, N.A. , 394 S.W.3d 1 (Tex. App.—Dalla s 2011, no pet. ) ............................................. 16, 27 Tenn. Gas Pipeline Co. v. T echnip United States Corp. , 2008 Tex. App. LEXIS 6419 (T ex. App.—Houston [1st Dist .] Aug. 21, 2008, pet. denied) ....................................................................................................................... . 2 Zachry Constr. Corp. v. Port of Houston Auth. , 449 S.W.3d 98, 112 n. 66 (Tex. 2014) ............................................................... 10, 22 Ohio Cartmell v. Rudolph Wurlitzer Co. , 18 Ohio Dec. 380 (Ohi o C.P. 1 907) .......................................................................... 9 Dot Systems, Inc. v. A dams Robinson Enterprises , 67 Ohio App. 3d 475 (Ohio App. 1990) .................................................................... 9 Michels Corp. v. Rockies Express Pipeline, LLC , 2015-Ohio-2218 (Ohio Ct. App., Monr oe County June 5, 2015) ........................... 14v GUIDE TO CITATIONS AND ABBREVIATIONS “Summit” means Summit Industrial Construction, LLC, the appellant. “UEOM” means Utica East Ohio Midstream, LLC, the appellee. “CR” means the Clerk’s Record followe d by the appropriate page number. “RR” means the Reporter’s Record follo wed by the appropriate page number. “UEOM Brief” means Brief of Appellee Utica East Ohio Midstream L.L.C. followed by the appropriate page number. The “Contract” means collectively, the Ma ster Service Agreement executed March 15, 2014, and Contract Work Order No. PO 52066, ex ecuted on March 11, 2014. See CR 46-176. “Project” means the construction of the Leesville cryogenic distillation plant in Carroll County, Ohio, which is the subject of this action.1 REPLY TO UEOM FACTUAL MISSTATEMENTS In its brief, UEOM makes certain fact ual assertions and pur ports to “correct” certain allegedly “incorrect assertions” contained in Su mmit’s brief. In several instances, such attempts miss tate facts, which warrant clarification. Those issues are addressed briefly below: A. T HE NATURE OF S UMMIT ’ S DAMAGES REMAINS AN OPEN QUESTION AND S UMMIT RESPECTFULLY REQUESTS THAT THE C OURT , TO AVOID ANY FUTURE CONFUSION , NOT ADOPT UEOM’ S INACCURATE DESCRIPTION OF S UMMIT ’ S CLAIM UEOM incorrectly states that “Su mmit claims that it is entitled to consequential damages....” UEOM Brief (p . 3). Summit’s position is and has been that its damages are direct damages, whic h are outside the scope of Article 17.j., the waiver of consequential damages clau se, of the Master Services Agreement portion of the Contract. See e.g. CR 182 (“[a]s a direct and sole result of [UEOM]’s changes and disruptions to th e agreed Contract schedule, Summit’s work was delayed and extended....”), 183 (“[t]his [request for equitable adjustment] is the direct result of [UEOM]’s failure to execute its core contractual obligations....”), 193 (“[t]hese delays directly resulted in the extension of Summit's field overhead costs....”), 194 (“[t]hese diffe ring site conditions, coupled with the other delays and impacts to the above -ground and undergrou nd piping scopes of work, directly resulted in significant craft disruption and productivity loss”), 224 (“[a]s a result, Summit’s direct costs of the work were increased. Summit is2 entitled to an equitable adjustment of the C ontract price to compensate it for these direct cost increases”), 264 (“Summit request ed payment for the direct damages it incurred as a result”), 281 (same), 302 (same). The parties’ dispute regarding whet her all or any portion of the damages sought by Summit in this case are or ar e not “consequential da mages” within the meaning of Article 17.j. ha s never been actually presen ted to, considered by, or resolved by any court. The issue of whet her damages are or are not consequential is essentially a mixed question of law and fact, not susceptible of summary adjudication. See e.g. Tenn. Gas Pipeline Co. v. Te chnip United States Corp. , 2008 Tex. App. LEXIS 6419, *9-10 (Tex. App.—Houston [1st Di st.] Aug. 21, 2008, pet. denied) (parties instructed to place all evidence concerning damages before the jury, who would be instructed to determine whether a breach occurred and, if so, to determine the award of damages without regard to whether such damages were precluded under the contract, and the tria l court would late r determine which damages were barred as a matter of law); Powell Elec. Sys. v. Hewlett Packard
Co. , 356 S.W.3d 113, 116 (Tex . App.—Houston [1st Dist.] 2011, no pet.) (following a jury trial, the appellate court determined whether such damages were recoverable de novo). UEOM’s characterization of Summit’s damages as consequential is both the fundamental underpinning of UEOM’s argum ent that it will suffer harm if it is3 required to litigate in Ohio and is also indi cative of a fundamental flaw in the Trial Court’s irreparable harm analysis, as disc ussed further in late r portions of this brief. This issue—whether or not all or any portion of Summit’s damages are consequential—has not been addressed, much less re solved, by any court nor, again, is it an issue that is susceptible of summary adjudication. Accordingly, UEOM’s repeated characterization of Summit’s damages as consequential in connection with this appeal, as if this were an established fact and without clarifying that this is merely UEOM ’s argument on the subject (let alone not the position of Summit), is highly inappr opriate and wholly inaccurate. Summit disputes UEOM’s characteriza tion of Summit’s claim, and requests that the Court not adopt UEOM’s general and inaccurate description of Summit’s damages when issuing its decision. The nature of Summit’s damages is an open question, which should be determined at the appropriate time as the underlying
case progresses. B. UEOM DID , IN FACT , PREVIOUSLY COMPENSATE S UMMIT FOR DELAYS UEOM denies that Change Order No. 5 to the Contract compensated Summit for delay damages. See UEOM Brief (p. 8). In fact, however, UEOM paid Summit a substantial amount in dela y damages pursuant to Change Order No. 5—damages that are virtually identical in nature to the damages UEOM now seeks to characterize as consequential and cont ractually barred. Pursuant to Change4 Order No. 5, UEOM also agreed with Summit to a related extension of the Contract schedule. UEOM states that it denied Summit’ s Request for Equitable Adjustment (“REA”) “on the basis that Summit sought contractually barred consequential and indirect damages....” UEOM Brief (p. 8). UEOM makes this statement without clarifying that, in fact, (1) UEOM issued letters and conducted meetings with Summit regarding its delay damage claims over a peri od of months without once raising this defense, (2) UEOM has never res ponded in writing to the REA (outside of formal legal pleadings), and (3) the first time UEOM ever raised any issue respecting Article 17.j. of the Master Se rvices Agreement portion of the Contract in connection with this Project was in the petition filed in the underlying action seeking declaratory relief, whic h was prepared by its lawyers. UEOM seeks to resolve its inconsiste nt course of performance in this case by (1) inaccurately stating that the sole purpose of Change Order No. 5 was merely to address additional piping added to Summ it’s scope of work and (2) inaccurately implying that UEOM raised its curre nt consequential damages defense immediately following the assertion of Summit’s delay claims, rather than accurately reporting that th is defense was first raised by UEOM’s lawyers months after the Project was completed. In fact, th is defense was not raised until more than six months after UEOM agreed and actu ally paid Summit delay damages in5 connection with Change Order No. 5 and only after several months of written and in-person pre-mediation negotiations c oncerning the additional delay claims referenced in the REA. See CR 6; 179-181. Notably, UEOM obviously understands that its factual contention is inaccurate, which is apparently why UEOM does not actually deny paying Su mmit for delays and instead states: “Nothing in the appellate record —save Summit’s bare allegations—supports Summit’s contention that Change Order No . 5’s purpose was to compensate for Utica-caused delays.” UEOM Brief (p. 8) (emphasis added). Change Order No. 5 is in the appellate record, however, as is the REA, and both confirm UEOM’s course of performance. Change Order No. 5, by its terms, i nvolved a significant payment to Summit and postponed the mechanical co mpletion date of the Project. See CR 180. The REA, in detail, further describes the role of Change Order No. 5 in compensating Summit for delays. See e.g. CR 185 (referencing “the ac celeration/recovery plan reflected in Change Order No. 5” and “[t] he later-negotiated acceleration/recovery plan, Change Order No. 5....”); 189 (noting th at “[t]he delay associated with this late-added scope was addressed in Contract Change Order No. 5....” and “Change Order 5 represented an acknowledgement of critical delay by [UEOM], and was an attempt by the parties to ‘re-baseline’ th e Project execution plan to account for the delays which had occurred in the form of a recovery/acceleration plan”).6 C. S UMMIT ’ S PRINCIPAL PLACE OF BUSINESS IS LOCATED IN G EORGIA UEOM attempts to characterize Summit’ s Texas office as its principal place of business or “main office.” See UEOM Brief (p. 8-10). Summit’s principal place of business is its office in Alpharetta, Georgia. See CR 280. The personnel managing Summit’s Pasadena , Texas office take direction from the Alpharetta office, which is the location of Summit’ s President and Chief Executive Officer and other top executives. See CR 280. Summit’s Texas office is a satellite office.
See CR 280. UEOM’s “proof” that the Te xas office was Summit’s principal place of business or “main office” consists of (1) the fact that Summit prominently displayed that it has a Texas office in mark eting materials and (2) the fact that its Project Manager referenced the Pasadena, Texas office in his email signature block in late 2014, near the end of the Project. See UEOM Brief (p. 9-10). UEOM dismisses the sworn affidavit of Summit’ s President and Chief Executive Officer, favoring marketing material s and an email signature block, but fails to acknowledge that UEOM did not object to th e affidavit in relation to the temporary injunction hearing. With respect to the marketing materi als, Summit is a growing industrial construction company that recently establis hed its first permanent satellite office in a state that has significant industr ial construction developments. See CR 263. Bringing attention to this e xpansion via its website is ba sic marketing. With respect7 to Summit’s Project Manager, UEOM fails to report that prior to August 2014, his office address was Alpharetta, Georgia. In fact, in June 2014 he signed the cover letter for Change Order No. 5, which solely identified Summit’s Alpharetta, Georgia address. See CR 179. This individual was tr ansferred to the Texas office after the start but before the completion of the Project. To the extent that any of this information is even relevant to the resolution of this dis pute, UEOM’s factual assertions are inaccurate. D. UEOM DELAYED S UMMIT DURING THE P ROJECT UEOM claims that there is no ev idence “[UEOM] did not timely perform certain work that Utica was allegedly re sponsible for completing before Summit’s work could begin.” UEOM Brief (p. 11). It is unclear to Summit why UEOM raises this issue, which is not relevant to this appeal, but it is notable that UEOM does not deny that it delayed Summit. Th e reason is that UEOM, in fact, did not provide materials, equipment, and pred ecessor work per the agreed Contract schedule, and UEOM knows it. Contrary to UEOM’s a ssertions, this delay is evidenced by (1) promised delivery dates for owner furnished materials contained in Change Order No. 5 and the original Pro ject schedule, as compared to (2) the actual delivery dates referenced in the REA, all of which are in the appellate record. See e.g. CR 180-181; 182-183.8 REPLY ARGUMENT
I. UEOM HAS BROKEN ITS AGREEMENT WITH O HIO AND HAS BREACHED THE C ONTRACT REGARDING FORUM In its brief, UEOM alleges over and over again that Summit is attempting to “rewrite” or “subvert” the Contract. See e.g. UEOM Brief (p. 3, 5, 12, 23, 31, 32, 47). In fact, however, there is only one party to this di spute that has violated any agreement, and it is UEOM. Setting asid e the Contract obligations UEOM failed to perform, there is a bigger picture agre ement concerning this Project that UEOM does not want to discuss. UEOM agreed with the State of Ohio that it would subject itself to Ohio law and to an Ohio forum in return for the benefits Ohio law provides, both when it registered with the St ate of Ohio to do bus iness in the state, and again when it sought and obtained a pe rmit to construct the Project in Ohio. 1 It is notable that this Contract was entirel y performed in Ohio, this Project and its related developments operate exclusively within the Oh io, and the Project is a natural gas facility that exclusively u tilizes the natural resources of Ohio. See CR 280. Ohio Revised Code §4113.62(D)(2) unambiguously requires litigation resulting from a contract for c onstruction of a Project within the state of Ohio to be

1 Notably, UEOM was not registered to do busin ess in the State of Texas with the Texas Secretary of State’s Office until after Summit informed the Trial Court of this fact in Summit’s Motion to Dismiss. Compare CR 300 (noting in a motion f iled by Summit on March 2, 2015 that “Utica Ohio is not registered with the Texas Secr etary of State to do busi ness in the State of Texas”) with CR 517 (showing that UEOM’s Applicati on for Registration of a Foreign Limited Liability Company was not filed until March 5, 2015).9 litigated in Ohio pursuant to Ohio law. See ORC Ann. § 4113.62(D)(2). Texas has codified a virtually identical public policy. See Tex. Bus. & Com. Code § 272.001(b). Similarly, the Ohio Mechanic’s lien statute, just like the statutes in Texas and other states, requires that litiga tion to foreclose a mechanic’s lien be brought where the property is located. See CR 298. Texas mechanic’s lien law is in accord. See e.g. Tex. Prop. Code §§53. 154, 53.157(2), 53.175, 53.239; Tex. Civ. Prac. & Rem. Code §15.11. The underlying declaratory judgment action, UEOM’s anti-suit injunction, and this appeal really involve a singl e issue—UEOM’s ongoing refusal to follow the procedural laws applicable to this dispute, and a single question—whether the courts of Texas will endorse and f acilitate UEOM’s mi sconduct or not. It is axiomatic that a foreign corpor ation that voluntarily elects to conduct business in a particular state agrees to do so in compliance with the applicable laws of the state or states within which it conduc ts business. This fundamental principle was expressly observed by Ohio courts as early as 1907:
Foreign corporations may contract in this state within the scope of their powers, and subject to the laws of this state , in the same manner that domestic corporations and individuals resident of this state or of other states may.

Cartmell v. Rudolph Wurlitzer Co. , 18 Ohio Dec. 380, 386 (Ohio C.P. 1907) (emphasis added); see also Dot Systems, Inc. v. A dams Robinson Enterprises , 6710 Ohio App. 3d 475, 481 (Ohio App. 1990) (“When a forei gn corporation engages in business in a state, that corporation may be appropriately subjected to the laws of the state imposing conditions or restrict ions upon its doing business within the limits of such state.”) Agai n, Texas law is in accord. Continental Oil & Cotton Co. v. E. Van Winkle Gin & Machine Works , 131 S.W. 415, 416 (Tex. Civ. App. 1910, writ ref’d) (“It is settled that the stat e has the right to pr escribe conditions to be complied with before a foreign corp oration can do business in this State.”) As UEOM tacitly admits, it is a sophi sticated party and conducts its business with the advice of counsel. See UEOM Brief (p. 21). In fact, UEOM’s in-house attorney, Laranne Breagy, is the pers on who signed the Contract for UEOM. See CR 32. Texas has long recognized the following principle regarding contracts:
As a general rule, it may properly be sa id that laws in existence at the time and place of making of a contract, as well as laws then existing at the place where the agreement is to be performed, constitute an integral part of the contract, just as if they had been expressly incorporated therein. Ind eed, it is conclusively presumed that the parties to the contract knew the law and contracted with reference to it, and the agr eement will therefore be construed with regard to such laws as were then in existence

. Great American Insurance Co. v. Laney , 488 S.W.2d 481, 485-86 (Tex. Civ. App.—Fort Worth 1972), rev’d on other grounds , 498 S.W. 2d 674 (Tex. 1973) (quoting 13 Tex. Jur. 2d, Contr acts, Sec. 165) (emphasis added); see also Zachry Constr. Corp. v. Port of Houston Auth. , 449 S.W.3d 98, 112 n. 66 (Tex. 2014)11 (citing City of Houston v. Williams , 353 S.W.3d 128, 141 (Tex. 2011) and Wessely Energy Corp. v. Jennings , 736 S.W.2d 624, 626 (Tex. 1987)). Literally all of UEOM’s actions lead ing up to and in connection with this litigation have been for the purpose of avoiding the Ohio forum to which it voluntarily consented and chose to do business in. First, after receiving Summit’s REA, UEOM denied responsibility, but prop osed mediation in a successful attempt to delay the filing of a complaint by Summit. See CR 281. Then, despite an agreement being reached on the timing a nd other aspects of mediation, UEOM filed its Texas declaratory judgment action. Compare CR 281 (noting that details as to the mediation were reached on January 21, 2015 and mediation was scheduled for February 17, 2015) with CR 6 (showing UEOM’s petition for declaratory relief being filed on January 21, 2015). UEOM seeks no damages in its Texas action, and did not serve the pe tition until just before the mediation. See CR 10-11, 12. Next, UEOM obtained an ex parte temporary restraining order and then immediately sought and obtained an injunction of Summit’s properly filed Ohio action. Later, UEOM sought an extens ion of time to answer the Ohio action.
See CR 16-24. The reason for UEOM’s conduct is clear: UEOM wants to avoid, at all costs, the Ohio jurisdiction it consen ted to when it elected to do business in Ohio and when it contracted with Summ it. It has done this while essentially pretending that the Contract includes a forum selection clause requiring litigation12 in Texas while, in fact, no such clause exists in any form. UEOM is now brazenly seeking valid ation of its misconduct from the Texas courts by arguing that it is Summit who is not following the Contract. The Court should not endorse UEOM’s misconduct. Summit respectfully submits that UEOM’s agreement with the State of Ohio , standing alone, is sufficient reason to dissolve the injunction. UEOM chose to do business in Ohio, and it committed breaches of contract in Ohio, made fraudul ent representations in Ohio, failed to pay for work performed in Ohio, and a lien has been filed on its property in Ohio. UEOM’s election—and its conduct—make pursuit of claims in Ohio entirely proper. Summit further submits that when UEOM’s agreement with the State of Ohio as a permitted foreign corporation is coupled with its agreement with Summit to accept Ohio as the forum and applicable law for the resolution of this dispute by virtue of the incorporation of Ohio Rev ised Code §4113.62 into the Contract by operation of law, dissolution of the tempor ary injunction and dismissal of UEOM’s underlying declaratory judgment acti on is the only appropriate remedy.
II. A S THE KEY ISSUE IN THIS APPEAL IS FORUM , NOT CHOICE OF LAW , ENJOINING S UMMIT DOES NOT PROTECT T EXAS PUBLIC POLICY

— IT CONTRAVENES IT UEOM acknowledges that the Contract does not contain a forum-selection provision: “The contract does not have an explicit forum-selection clause.” UEOM Brief (p. 4). In spite of the absen ce of a forum-selection clause within the four-corners of the Contract, and desp ite applicable law and public policy,13 incorporated by operation of law into th e Contract, that mandates that litigation arising out of the Contract be brought in Ohio, UEOM convinced the Trial Court to effectively insert a Texas fo rum requirement and seeks to have this Court affirm that ruling. UEOM uses its “first-filed” stat us as a declaratory judgment plaintiff to bolster its request, despite the fact that UE OM is not, in reality, the actual plaintiff in the case. 2 UEOM argues that Summit’s Ohio action is a threat to Texas’ public policy of protecting freedom of contract and enforc ing contracts as written. To that end, the order granting the anti-suit injunction, which was drafted by UEOM’s attorney,

states:
If Defendant is permitted to pros ecute its Ohio lawsuit and seek construction of the contract under Ohio law, despite the express terms of the contract requiring construc tion under Texas law, their actions are likely to result in immediate and irreparable harm to Plaintiff by denying Plaintiff the benefit of ke y provisions bargained for in their contract, and used in many other sim ilar contracts to which Plaintiff is a party. The probable injury that would be suffered through Plaintiff’s loss of the benefit of these expr ess rights under the contract is imminent and would be an irreparabl e injury for which Plaintiff would have no adequate legal remedy. Further, such actions would evade and be a violation of Texas’s public polic y interest in enforcing a contract as written to preserve the fre edom of contract. CR 668.

2 In Abor v. Black , 695 S.W.2d 564, 566 (Tex. 1985), the Texas Supreme Court supported the dismissal of a declaratory judgment action where the suit sought a declar ation of non-liability and where the declaratory judgment suit, “deprived the real plaintiff of th e traditiona l right to choose the time and place of suit.”14 The implication of this holding is that if Summit had filed first in Ohio but taken the position that Texas law applie d, then Summit’s actions would not have been an evasion. Ultimately the outcome would ha ve been the same; the Ohio court would have followed Ohio Revised Code §4113. 62(D) and applied Ohio law as required by the statute. See e.g. Michels Corp. v. Rockies Express Pipeline, LLC , 2015- Ohio-2218, *P25 (Ohio Ct. App., Monroe County June 5, 2015) (confirming that Ohio Revised Code §4113.62 trumps a contractual choice of law clause). Moreover, the potential application of Ohio law to this dispute is a function of law—law to which UEOM voluntarily s ubmitted—and not any improper action on the part of Summit. Theref ore, the real issues in this appeal are forum, comity, and UEOM’s agreement to be bound by the laws of Ohio with respect to its actions as a foreign corporation operating within the borders of Ohio. Even if the Ohio statute is not cons idered and, further, even if UEOM’s argument that this appeal should be decide d solely on the basis of the boilerplate choice of law provision in the C ontract is followed, Summit still should not be enjoined from pursuing legal remedies in Ohio because there was no agreement to litigate in Texas. UEOM repeatedly clai ms Summit is attempting to rewrite the Contract or use the Ohio c ourt to rewrite the Contract. See e.g. UEOM Brief (p. 12, 13, 23, 26, 31, 35). UEOM refers to itself as a “s ophisticated part[y] receiving the advice of counsel”—counsel that ex ecuted the Contract, counsel that was15 presumably involved in registering UEOM with the Ohio Secretary of State, and counsel that was presumably aware of applicable Ohio law. See UEOM Brief (p. 24); CR 173. But while UEOM positions itself in this case as a champion of the sanctity of freedom of contract, UEOM ge nerally ignores the fact that it, as a sophisticated party that operates under the advice of counsel, neither bargained for nor included a forum selection clause in the Contract. As UEOM admitted in the March 16, 2015 hearing, the Master Service Agreement is UEOM’s standard form; UEOM drafted it. See RR 50:1-23. Despite the absence of a forum-selection clause in its own contract form, UEOM has sought, and been granted, an anti-su it injunction on the grounds that Summit’s Ohio lawsuit, brought in accordance with applicable law (statu torily mandated in this case) which was, in accordance with Te xas law, incorporated by reference into the Contract, is an evasion of Texas public policy supporting freedom of contract. The ironic upshot of UEOM’s position is that UEOM is requesting that this Court rewrite the Contract to include a forum-selection clause , or to alternatively hold that, despite Texas’s recognition of the difference between choice of law and forum, a choice of law clause acts to limit otherwise available or required forums. UEOM is requesting this remedy without providing any legal precedent for such a decision and in the face of the public poli cy of both Ohio and Texas, both of which unambiguously declare that construction disput es should be litigated in the state in16 which the project is located and in accordance with the law of the state where the project is located, despite any contract provisions to the contrary. Moreover, UEOM’s position gives absolutely no creden ce to the concept of comity, despite the Texas Supreme Court’s stat ement that “if the principle of comity is to have any application, a single parallel proceeding ... cannot justify issuing an anti-suit injunction." Golden Rule Ins. Co. v. Harper , 925 S.W.2d 649, 651-652 (Tex. 1996) (citing Gannon v. Payne , 706 S.W.2d 304, 307 (Tex. 198 6)). Moreover, as stated in the Rouse decision, “In accordance with the principle of comity, Texas will recognize the laws of other states and, in return, will expect those other states to afford the same treatment to Texas.” Rouse v. Tex. Capital Bank, N.A. , 394 S.W.3d 1, 7 (Tex. App.—Dal las 2011, no pet.) (citing K.D.F. v. Rex , 878 S.W.2d 589, 593-94 (Tex. 1994)). UEOM’s position is contrary to the policies it purports to champion, the policies established by the Texas legislature, and the policies established by the Texas Suprem e Court and appe llate courts.
III. T HE QUESTION OF HOW A T EXAS COURT WOULD RULE ON UEOM’ S LEGAL DEFENSE IS NOT RESOLVED , THEREFORE NO GROUND FOR AN INJUNCTION EXISTS UEOM’s claim that it will be prej udiced is a legal conclusion based on issues that have not been factually deve loped, and determina tions that the Texas court has not yet made. Specifically, UEOM claims that Summit’s damages are consequential under Texas la w and are, therefore, not recoverable pursuant to17 Article 17.j. of the Master Services Agreement portion of the Contract. See CR 9, 10. UEOM’s position is disputed, and this issue has not been presented, briefed, ruled upon or otherwise established. See CR 259. That alone implies an abuse of discretion by the Trial Court, taking all of UEOM’s other disputed positions at face value, because absent a finding that UE OM would receive a different result under Ohio law, there is no evid ence that an irreparable mi scarriage of justice or irreparable harm will occur. As UEOM noted in its appe llate brief, there can be no harm in applying one state’s law if ther e is no conflict with another state’s law. See UEOM Brief (p. 34). Without a legal determination of whether or not the damages sought in the REA are excluded by the Contract’s general consequential damages waiver under Texas law, 3 there was no evidence before the Trial Court that UEOM would suffer an irreparable harm. UEOM bears the burden to establish irreparable harm in support of its request for an injunction but it demonstrably did not carry that burden, even if this Court accepts UEOM’s other erroneous ar guments. A conjectural injury is not enough. As this Court has stated:

The law is well settled that a tria l court abuses its discretion in granting a temporary injunction unless it is clearly established by the facts that one seeking such relief is threatened with an actual irreparable injury if the injuncti on is not granted. Moreover, an

3 UEOM’s position appears to be that Summit’ s damages are recoverable under Ohio law, whether or not Summit’s damages are ultimately characterized as consequential or direct.18 injunction will not lie to prevent injury that is purely conjectural.

Manufacturers Hanover Trust Co. v. Kingston Investors Corp. , 819 S.W.2d 607, 611 (Tex. App.—Houston [1st Dist.] 1991, no writ). UEOM failed to meet its burden and, accordingly, the Trial Cour t abused its discretion in issuing the temporary injunction.
IV. UEOM’ S NEW ARGUMENTS DO NOT SUPPORT A FINDING THAT S UMMIT ’ S ACTIONS WERE HARASSING AND VEXATIOUS In attempting to support the finding of harassing and vexatious action by Summit, UEOM relies upon a single aspect of the Triton decision implying that the Texas defendant’s attempt in that case to proceed to summary judgment very quickly after it filed suit in California and its refusal to grant the Texas plaintiff additional time to “develop the case” wa s the basis for the Court’s finding of harassing and vexa tious behavior. See UEOM Brief (p. 36). However, in the very next sentence of its opinion, the Court in Triton focused on the fact that the Texas defendant had violated its contract by bringing the second California suit in contravention of the parties’ contractual forum selection clause: “The trial court found that rather than submitting to the ju risdiction of the Texa s court and abiding by its decision, as the insurance policy required , AISLIC filed suit in California and proceeded to race to judgment there.” Am. Int’l Specialty Lines Ins. Co. v. Triton Energy Ltd. , 52 S.W.3d 337, 342 (Tex. A pp.—Dallas 2001, pet. dism’d19 w.o.j.). There is no expre ss forum selection clause in this Contract, a fact which distinguishes this case from the facts presented in the Triton and Rouse decisions relied upon so heavily by UEOM. Moreover, Summit has not done anything to accelerate the Ohio action, despite the fact that Ohio is the proper forum, and has instead merely notified the Ohio court of UEOM’s injunction so as to avoid an involuntary dismissal for want of prosecution. Instead of pursuing relief in Ohio, Summit has pursued this appeal. Summit’s notice of temporary restraining order filed with the Ohio court was neither harassing nor vexatious, by any reas onable standard. UEOM obtained its ex parte temporary restraining order in the underlying case on February 19, 2015.
See CR 15. Weeks later, on March 13, 2015, neither UEOM nor the Trial Court had informed the Ohio court of the f act that Summit had been enjoined from pursuing the Ohio action. Summit’s local counsel in Ohio, having duties to that court independent of its duties to Summit, filed the notice of temporary restraining order informing the Ohio court of what had occurred while asking absolutely nothing of the Ohio court. See RR (Ex. 14). UEOM takes the position that simply informing the Ohio court as to the events occurring in the Texas action (and even the existence of the Texas action), wh en UEOM was unwilling to do so, amounts to harassing and vexatious conduct. UEOM’s concern w ith and objection to having the Ohio court even informed of the exis tence of the injunctive relief sought and20 obtained by UEOM merely illustrates the ex tent to which UEOM is prepared to go to avoid the Ohio forum it is legally committed to. Indeed, if Summit’s notice to the Oh io court informing it that Summit was enjoined from proceeding was deemed to be harassing a nd vexatious and a violation of the temporary re straining order, particular ly under circumstances in which UEOM did not notify the Ohio court its elf, the result would be an incredibly unjust situation wherein UEOM could file any request or motion in Ohio that it wanted, Summit would be precluded from responding by the inju nction obtained by UEOM, and Summit’s counsel would be e xposed to potential contempt claims in Texas for responding and malpractice clai ms in Ohio for not responding. This scenario could also result in Summit’s lie n rights and other causes of action being dismissed with prejudice for want of pros ecution. This result is neither necessary nor desired, even in the very narrow circ umstances where an anti-suit injunction is warranted; circumstances that are not present in this case. Summit’s conduct leading up to and in addressing the te mporary injunction has been anything but harassing and vexatious.
V. T HERE IS NO THREAT TO T EXAS JURISDICTION UEOM urges the Court to follow the conclusions of Rouse and Triton without recognizing the major differences be tween those cases and this case, most importantly (1) the fact that both cases involved second-filed lawsuits where the21 forum for disputes was governed by contract , and (2) the fact that neither of those cases involved a party filing suit in Texas in violation of another state’s law to which it knowingly and voluntarily consented (t o its benefit), as UEOM did here. In the section of the Triton opinion addressing threat to jurisdiction, the
Triton court specifically focused on the viola tion of the contract’s forum selection clause, stating: The trial court found that AISLIC had undercut its contractual promise by pursuing the California Lawsuit, and concluded that having made that agreement and them having gotten here first, whether they should or shouldn’ t have, that’s it. And you can’t undercut that by running off to anothe r forum. I think that this -- the other case therefore becomes a threat to my jurisdiction. It wouldn’t otherwise be, but it does become one.
Triton , 52 S.W.3d at 342. The court specifically tied the contractual promise respecting forum to the threat to jurisdiction. See Triton , 52 S.W.3d at 342

. There was no contractual promise by Summit to submit to a forum of UEOM’s choosing in this case. And despite UEOM’s repeated attempts to portray Summit’s Ohio action as “seeking” to have the case adjudicated using Ohio law, the fact is that the potential application of Ohio law to this dispute is a function of law—law to which UEOM voluntarily subm itted—and not any ac tion on the part of Summit. Summit has not undercut a ny agreement. By contrast, UEOM has undercut its agreement with the State of Ohio to subject itself to Ohio law, and also undercut its agreement with Summit when it filed the underlying Texas action22 before mediation that it pro posed and later when it soug ht to restrain Summit from proceeding in the required Ohio forum. In fact, as previously established, Te xas courts adhere to the principle that the law of the place where a contract is to be performed is incorporated into and forms a part of a contract as if it wa s expressly set forth in the agreement. See Laney , 488 S.W.2d at 485-86; Zachry , 449 S.W.3d at 112 n. 66. Applying this well-established Texas law, the decisions in Rouse and Triton actually mandate a decision in favor of Summit , as it is UEOM that is viol ating the Contract’s implicit forum-selection provision as establis hed by Ohio Revised Code §4113.62. UEOM’s entire appellate argument re specting these two decisions, when considered in conjunction with the f act that Ohio Revised Code §4113.62 is incorporated into the Contract by operati on of law, mandates a ruling in favor of Summit and a dismissal of the Texas action. The only court whose jurisdiction has been threatened is the Ohio court. Moreover, the idea that the Ohio cour t could, without a ny indication that it intends to, attempt to issue pre-emptive rulings on issues before the Texas court could adjudicate them has been rejected by the Texas Supreme Court as a threat to jurisdiction in Gannon, Christensen, and Golden Rule , which all involved secondfiled parallel actions. See Gannon v. Payne , 706 S.W.2d 304, 307 (Tex. 1986); Christensen v. Integrity Ins. Co. , 719 S.W.2d 161, 163-164 (Tex. 1986); Golden23 Rule Ins. Co. v. Harper , 925 S.W.2d 649, 651 (Tex. 1996). By contrast, in Rouse , the aggrieved defendant in the second -filed Oklahoma suit filed a motion to dismiss and, later, a motion for judgment on the pleadings or, in the alternative, a stay of claims, both of which were base d on the contract forum-selection clause and both of which were deni ed by the Oklahoma court. Bas ed on these facts, the
Rouse court stated: “[D]espite TCB’s reque sts, the Oklahoma trial court and the Oklahoma Supreme Court declined to stay or abate the claims against TCB in the Oklahoma suit. Because of this refusal to act , the trial court could reasonably conclude that Oklahoma was no t a cooperative jurisdiction.” Rouse , 394 S.W.3d at 8 (emphasis added). Notably, all of this analysis turn ed on the presence of a forum-selection clause requiring that suit be brought in Texas. In this case, the only forum-selection clause is imposed by law and mandates that Ohio is the proper forum. There is no forum-selection clause pursuant to which the parties agreed to a Texas forum. Moreover, the Ohio court has taken no action in this case similar to that taken by the Oklahoma court in Rouse . Since UEOM filed its answer, UEOM has made no attempts to have th e case dismissed or stayed. The Ohio case was filed in early February 2015, and UEOM filed its answer on or around March 20, 2015. Since then the only communications from th e Ohio court to the parties has been in an attempt to set up an initial status c onference, which would occur at the earliest24 sometime in August 2015. UEOM’s own lack of action in Ohio and the speed of the court in the Ohio action are not consis tent with UEOM’s argument that there is a threat to jurisdiction. The Supreme Court of Texa s has made short work of all three of the anti-suit injunction cases it has heard in the past th irty years. In th e most recent case, Golden Rule , the plaintiff in the first-filed Te xas action involved a Texas widower suing the defendant insura nce company to recover the costs of the deceased spouse’s medical care in Texas. See Golden Rule , 925 S.W.2d at 650. The insurance company, after first attempting to change venue within the state, filed a declaratory judgment action in Illinois, re quiring the plaintiff-wi dower to engage in duplicative litigation. See Golden Rule , 925 S.W.2d at 650. Even under the much more compelling facts of Golden Rule (no statute requiring litigation in a particular state, no voluntary submission to Illinois law by the plaintiff-widower, no contract performance in Illinois) , the Texas Supreme Court overturned the anti-suit injunction against the insurance company in a brief, three-page decision based upon comity considerations; consider ations UEOM simply ignores.
VI. A RULING IN FAVOR OF UEOM WILL ENDORSE THE VIOLATION OF LAW OF A SISTER STATE , IS CONTRARY TO THE PUBLIC POLICY OF BOTH STATES , AND IS INCONSISTENT WITH THE PRINCIPLE OF COMITY Both Ohio and Texas recognize their re spective state’s interest in having construction disputes litigated locally, and have determined that this public policy25 is important enough to statutorily codify. See ORC Ann. § 4113.62(D)(2); Tex. Bus. & Com. Code § 272.001(b). Ohio Revised Code §4113.62 mandates UEOM bring its action in Ohio. UEOM exists for the sole purpose of doing business in Ohio, as its name (Utica East Ohio Midstrea m) suggests. It owns property in Ohio, contracted to build facilities in Ohio, and its sole business purpose is to avail itself of and profit from Ohio natural resources . As an attorney-represented company, UEOM knew or should have known about Ohio Revised Code §4113.62 at the time its attorney executed the Contract and at the time it registered to do business as a foreign corporation in Ohio. When disputes arose and Summit submitted its REA, UEOM promptly suggested mediation. Then prior to mediation, and despite claiming no actual damages, UEOM surrep titiously filed a declaratory judgment action in Texas, and later moved to enjoin Summit’s properly filed Ohio action. This whole case is a calculated atte mpt by the non-aggrieved party to avoid jurisdiction it is legally re quired to submit to and which it voluntarily agreed to submit to. There is no precedent supporting UEOM ’s desired outcome: specifically, an anti-suit injunction imposed by a Texas cour t to facilitate attempts of a foreign corporation to avoid the jurisdiction of th e courts of another state to which the foreign corporation voluntarily submitted. It would be poor policy, wholly inconsistent with the concept of comity, for Texas courts to facilitate and endorse26 such actions. The result would be to enc ourage parties to race to the courthouse and to encourage other state courts and li tigants to thwart the Texas public policy set forth in Chapter 272 of the Texas Bu siness and Commerce C ode. It would also open the door to other states trea ting Texas in a similar manner. UEOM attempts to support its stance with inconsistent positions. In its brief, UEOM characterizes fo rum selection as merely pro cedural: all it does is “set a ZIP code.” UEOM Brief (p. 30). Yet the entire basis of the irreparable harm UEOM claims it would suff er in the absence of th e anti-suit injunction would result from litigating in the Ohio forum. UE OM also presumes, apparently, that an Ohio court is simply incapable of corr ectly determining the controlling law, and then apply it correctly. The fact is, howev er, that any claim that the loss of the benefit of the choice of law clause would harm UEOM if litigation in Ohio were to continue is a function of law that UEOM voluntarily submitted itself to, not action by Summit. See ORC Ann. § 4113.62(D)(1).
VII. C HAPTER 271 OF THE T EXAS B USINESS AND C OMMERCE C ODE DOES NOT PROHIBIT CONSIDERATION OF OTHER STATES ’ LAWS UEOM suggests that Chapter 271 preclud es this Court from considering any public policy-based outcome in favor of Summit. See UEOM Brief (p. 23). However, Ohio Revised Code §4113.62 is a law, not merely a public policy. Even UEOM, while championing the cause of fr eedom of contract, acknowledges that other statutes, particularly Chapter 272 of the Texas Business and Commerce27 Code, override the right of freedom of contract protected in Chapter 271. See UEOM Brief (p. 23) (recognizing that “C hapter 272 is an exception to Chapter 271....”). Chapter 271 does not prohibit the c onsideration of other Texas statutes regarding choice-of-law, nor does it prohibit c onsideration of sister states’ statutes regarding choice-of-law. Recognizing the statut es of other states is consistent with the principle of comity as stated in the Rouse decision: “In accordance with the principle of comity, Texas wi ll recognize the laws of othe r states and, in return, will expect those other states to a fford the same treatment to Texas.” Rouse , 394 S.W.3d at 7.
VIII. T EXAS HAS NO TRUE INTEREST IN THIS CASE Finally, Texas has no true interest in th is case, save its interest in preserving and protecting the public policies esta blished by Chapter 272 of the Texas Business and Commerce Code. The partie s did not contract for Texas—or any state—as the forum for disp ute resolution. UEOM has not established that the application of Ohio law will result in a different result than the application of Texas law in this case. More fundame ntally, UEOM knowingly agreed to the application of Ohio law and to an Ohio forum when it contracted for construction of a project located in Ohio. Summit filed its affidavit for mechanic’s lien in Ohio, as it was required to do, on property located in Ohio. See CR 233-234. UEOM, as alleged by Summit, made fraudulent representations in connection with the28 execution of Change Order No. 5, such representations being made in Ohio, Colorado, and Georgia. See CR 43, 282. While Summit has a satellite office in Texas, and UEOM subcontract ed management of constr uction to another company that does work in Texas, the entirety of the contracted for work occurred in Ohio and the facility will operate in Ohio utiliz ing Ohio employees, will generate Ohio (not Texas) taxes, and w ill develop, consume and sell Ohio natural resources. Trying the case in Texas imposes a burden on Texas taxpayers with no corresponding benefit. CONCLUSION The Trial Court has determined that, fo r a project and transaction that had no real connection to Texas with no mandate d forum contained in the applicable contract, Texas is the so le appropriate forum, ev en when the wrongful acts complained of and resulting damages oc curred outside of Texas and the wronged party was required by law to file suit el sewhere. Summit did what it was required to do—file suit in Ohio, where the cons truction project was located, which was done pursuant to a codified public policy, also shared by Texas, that provides that disputes involving construction projects shoul d be resolved within the borders of the state where the project is located. Summit’s interest in litigating its contract, tort, statutory, and equitable claims in the state where UEOM’s acts and omissions occurred and the Project is located is consis tent with applicable law, public policy,29 and common sense. There was no threat to the Trial Court’s jurisdiction, no evasion of important public policy by Summit, no multiplic ity of suits, and no vexatious or harassing litigat ion conduct. The totality of circumstances negates the possibility that a clear equity justified th e Trial Court’s issuan ce of the temporary injunction. In short, the Trial Court abus ed its discretion in issuing the temporary injunction. As such, the ru ling should be reversed.
PRAYER Summit requests that this Court reverse the order of the Trial Court and render an order denying Plaintiff Utica East Ohio Mi dstream, L.L.C.’s Application for Anti-Suit Injunctive Relief , and Summit prays for such other and further relief at law and equity to which it may show itself justly entitled.
Respectfully submitted, FORD NASSEN & BALDWIN, P.C. 111 Congress Ave., Suite 1010 Austin, Texas 78701 512.236.0009 (telephone) 512.236.0682 (facsimile) rcfisk@fordnassen.com By: /s/ R. Carson Fisk R. Carson Fisk State Bar No. 24043659 Attorney for Appellant30 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoi ng has been served pursuant to the Texas Rules of Appella te Procedure via the electronic filing manager, if the email address of the party or attorney to be served is on file with the electronic filing manager, or via first class mail, if the em ail address of the party or attorney to be served is not on file with the electronic filing manager to the following person(s) on August 3, 2015: Counsel for Utica East Ohio Midstream, L.L.C. Nicholas D. Stepp, Scott D. Marrs, Andr ew B. McGill, a nd Scott R. Davis Beirne Maynard and Parsons L.L.P.

1300 Post Oak Blvd., Suite 2500 Houston, Texas 77056

By: /s/ R. Carson Fisk R. Carson Fisk

CERTIFICATE OF COMPLIANCE In compliance with Rule 9.4(i)(3) of th e Texas Rules of A ppellate Procedure, I hereby certify that there are 7,483 words in the foregoing document.

By: /s/ R. Carson Fisk R. Carson Fisk