In The 

Court of Appeals 

Seventh District of Texas at Amarillo 

 

No. 07-23-00366-CV 

 

ER SOFTWARE CANADA ULC, APPELLANT 

V. 

INTERDEV TECHNOLOGIES CORPORATION AND 

VALSOFT CORPORATION INC., APPELLEES 

On Appeal from the 200th District Court 

Travis County, Texas 

Trial Court No. D-1-GN-23-002713, Honorable Jessica Mangrum, Presiding 

February 26, 2024 

MEMORANDUM OPINION1 

Before QUINN, C.J., and PARKER and DOSS, JJ. 

Why say more when less both suffices and facilitates comprehension. Heeding 

that, we open in this way.

Canadian corporation A buys Canadian corporation B, which conducts no business 

in Texas and operates almost exclusively in Canada. Eventually, A decides to sell the 

1 Because this appeal was transferred from the Third Court of Appeals, we apply its precedent 

should it conflict with that of the Seventh Court of Appeals. TEX. R. APP. P. 41.3. 
2

assets of B to Canadian entity C. A found C after contacting an employee of California 

corporation D, who happened to office in New York. Then D, who had transplanted its 

headquarters to Texas while maintaining offices throughout the United States, if not 

globally, teamed with Texas corporation E to assist in consummating the sale to C. 

Negotiations ensued with all communicating electronically (e.g., telephone or 

email) through missives emanating to and from Canada and differing states, including 

Texas. Yet, never did an officer or employee of A or B set foot in Texas in furtherance of 

the sale. Any hesitance to travel did not so affect D or E, though. Their representatives 

went north to perform their due diligence of the targeted Canadian corporation and its 

Canadian assets. So too did D or E send their money northward from a Texas bank upon 

execution of the accord. And, in the contract ultimately signed, the signatories agreed 

that Canada’s law would control the enforcement of the agreement and resolution of 

disputes related thereto. 

Dispute did arise. Allegedly, various assets of B in Canada were not as 

represented. So, despite 1) being an entity created under the laws of Canada, 2) 

complaining of two Canadian corporations operating mainly in Canada and outside 

Texas, and 3) knowing Canadian law would settle the dispute, C sued A and B in Texas. 

Soon followed the special appearances of A and B. Neither believed Texas could 

legitimately exercise personal jurisdiction over them. C disagreed. That Canadian entity 

viewed its Canadian cousins as having subjected themselves to Texas authority due to 

their interaction with “Texans,” i.e., D and E. The electronic communications alluded to 

the purported reputation of California corporation D being headquartered in Austin, E’s 

operation in Texas, various obligations allegedly due D and E, and monies being sent 
3

from Texas were enough for the long arms of Texas to embrace A and B, in C’s 

estimation. Yet, neither D nor E were parties to the suit. Nor were the purported side 

agreements with them the subject of suit. 

No doubt, the words of Mr. Lovett ring true. “That’s right, you’re not from Texas, 

That’s right, you’re not from Texas . . . but Texas wants you anyway.” Maybe agreeing 

that Texas wanted them anyway, the trial court nevertheless decided it could not have 

them. So, it granted the special appearances and dismissed the entirety of C’s suit 

against A and B for want of personal jurisdiction. 

C appealed, believing the trial court erred. Texas had “special jurisdiction” over 

the Canadian corporations, argued C. Although we concede that the welcoming, long 

arms of Texas reach far and wide, we cannot fault the trial court’s decision.

Analysis

Our analysis begins with identifying A, B, C, D, and E. Valsoft Corporation (A) 

owned Interdev Technologies Corporation (B), the assets of which were bought by ER 

Software Canada ULC (C) with the assistance of Vista Equity Partners (D) and ESO 

Solutions, Inc. (E).2 But, because referral to each entity as A, B, C, D, and E, respectively, 

facilitates our explanation of the circumstances, their use will be continued. With that, we 

turn to discussing the pertinent law and applying it to the record.

We preliminarily note that the existence of personal jurisdiction over non-residents

implicates a question of law. State v. Volkswagen Aktiengesellschaft, 669 S.W.3d 399, 

413 (Tex. 2023); Searcy v. Parex Res., Inc., 496 S.W.3d 58, 66 (Tex. 2016). So, we 

consider de novo the question. Id. And, in doing so, we imply all relevant facts supported 

2 Apparently, ER was a subsidiary of ESO, which happened to be owned by a fund Vista controlled. 
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by evidence in favor of the ruling when the trial court executed neither findings of fact nor 

conclusions of law, like here. State, 669 S.W.3d at 413 (quoting Moncrief Oil Int’l Inc. v. 

OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013)). So too must we resolve any conflict 

in the evidence by upholding the trial court’s determination. Id. (quoting TV Azteca v. 

Ruiz, 490 S.W.3d 29, 36 n.4 (Tex. 2016)).

Since the debate simply focused on specific jurisdiction, our review is limited to 

that mode of gaining personal jurisdiction. It exists when 1) a defendant engaged in an 

act or acts which purposefully avails it of the privilege of conducting activities within Texas 

and 2) the plaintiff’s claim arises out of or relates to those contacts with the forum. State, 

669 S.W.3d at 412-13 (quoting Ford Motor Co. v. Mont. Eighth Judicial Dist. Court, 141 

S. Ct. 1017, 1024-25 (2021)). Purposeful availment is a bit of an amorphous concept. Its 

assessment involves a claim-by-claim analysis with an eye directed at the relationship 

among the defendant, the forum state, and the operative facts of the litigation. Id. Three

considerations guide the assessment. They consist of 1) only the particular defendant’s 

contacts with the forum, not those of another party or third person; 2) those contacts of 

the particular defendant being purposeful as opposed to random, fortuitous, or 

attenuated; and 3) the particular defendant seeking some benefit, advantage, or profit by 

availing itself of Texas’s jurisdiction. Id. at 413-14 (quoting Moncrief Oil, supra). Unlike 

the quantity of contacts, their quality and nature have sway. Id. That said, we turn to the 

merits of the appeal.

First, the general foundation of C’s contention rests upon the proposition that A 

and B knew they dealt with “Texans.” Indeed, one finds a plethora of references to 

“Texans” throughout its briefs. To the extent one defines “Texan” as “relating to Texas or 
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its inhabitants,” Collins Dictionary, www.collinsdictionary.com, maybe a legal fiction such 

as a corporation can be labeled “Texan.” See Chronister Lumber Co. v. Williams, 116 

Tex. 207, 211, 288 S.W. 402, 403 (Tex. 1926) (describing a corporation as a “legal fiction” 

or “artificial being without mind, soul, heart or life; it may not conceive a purpose, form or 

execute a plan, or do an act except through the agency of men or women”). And maybe 

D heeded Mr. Lovett’s words when opting to move its headquarters to Austin, though it 

undoubtedly maintains offices in various other states, including that of its incorporation. 

Yet asking us to assign any weight to the status as “Texans” is tantamount to asking us 

to factor links with the forum into the equation. That we cannot do, according to State. 

Again, only the particular defendant’s contacts with the forum are relevant, not those of 

another party or third person. So, the location of “Texans” D and E, who are not even 

parties to the suit, carries little sway. 

Second, that A and B engaged in conversation with representatives of D and E

located in Texas cannot be denied. However, telephonic or electronic communications 

are but one component of the equation; they are not ipso facto determinative. See 

Searcy, 496 S.W.3d at 74 (observing that electronic communication through calls and 

emails alone do not decide the case since the minimum contacts analysis focuses on the 

quality and nature of the defendant’s contacts, rather than their number); see also Old 

Republic Nat’l Title Ins. Co. v. Bell, 549 S.W.3d 550, 560 (Tex. 2018) (stating that “[o]n 

their own, numerous telephone communications with people in Texas do not establish 

minimum contacts, and we have noted that changes in technology may render reliance 

on phone calls obsolete as proof of purposeful availment”). Moreover, as in Searcy, those 

contacts involved the acquisition of assets of a Canadian corporation conducting business 
6

far outside Texas borders. As said in Searcy, electronically conducted “[d]iscussions that 

focused on acquiring some non-Texan assets are a far cry from purposeful availment of 

Texas’s jurisdiction . . . .” Searcy, 496 S.W.3d at 74-75.

Third, while there may have been some physical interaction between the parties 

during negotiation of the deal, they occurred outside Texas. No one representing A and 

B came to Texas, though personnel of D and E may have gone to Canada or other states 

while pursuing the investment. 

Fourth, concerning the aforementioned communications, they began not by 

contact with someone in Texas; rather, the call was placed to an employee of D 

headquartered in New York City. And, it happened that the employee apparently 

specialized in garnering Canadian business opportunities, or so indicates the evidence of 

record. That circumstance tends to trivialize C’s argument that A and B sought out D 

because of the California corporation’s supposed reputation for headquartering in Austin, 

Texas. Further trivialization occurs when we see that D ultimately agreed to receive 

notifications required under the agreement at its office in California. 

Fifth, one cannot escape the simple fact that culmination of the deal actually 

resulted in C, a Canadian entity, owning B. That steers us back to State and its comment 

about maintaining the separate identity of corporations when working the jurisdiction 

equation. See State, 669 S.W.3d at 419 (observing that “parent and subsidiary 

corporations are presumed to be separate from one another”). We hesitate to ascribe 

much weight to contacts with D and E in the jurisdictional calculus when neither directs

us to evidence illustrating they actually controlled the internal operations and affairs of C

or otherwise fused together their identities. See id. (quoting BMC Software Belg., N.V. v. 
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Marchand, 83 S.W.3d 789 (Tex. 2002) (stating that “to ‘ascribe one corporation’s actions 

to another by disregarding their distinct corporate entities’ or to ‘fuse’ the parent company 

and its subsidiary for jurisdictional purposes, the plaintiff[] must prove the parent controls 

the internal business operations and affairs of the subsidiary’ to a degree ‘greater than 

that normally associated with common ownership and directorship’”)). 

Sixth, the record nowhere illustrates that C’s acquisition of B resulted in A or B 

sending products or services to or otherwise operating in Texas. See Searcy, 496 S.W.3d 

at 74 (stating that jurisdiction is proper when a defendant has envisioned continuing and 

wide-reaching contacts in the forum state and noting that Parex Canada did not seek to 

launch operations in Texas or reap benefit from the Texas economy). B, its assets, and 

its operations remained foreign to Texas environs.

Seventh, no one denies that payment for the transaction came from monies held 

in a Texas bank. Yet, C failed to cite evidence indicating it mattered to A or B whether 

payment was composed of assets held in Texas. Indeed, as United States legal tender 

is rather fungible, it is just as likely that the seller had no interest from whence the funds 

came, so long as they came. 

Eighth, as for obligations due D and E, the latter alluded to contractual provisions

supposedly requiring their performance in Texas. In doing so, however, they neglected 

to provide a record cite to any provision of any agreement expressly mentioning Texas 

as the geographic situs of performance. Instead, the citations provided first led us to an 

affidavit wherein the affiant mentioned execution of a service agreement for short-term or 

interim “back-office services.” Those “back-office services” were described “as 

accounting, invoicing, accounts receivable, and accounts payable, for a period of time so 
8

that the Interdev business could continue to operate as it was being integrated into ESO.” 

Nothing was said about the services being performed or provided in Texas. Rather, it 

seems they were performable in Canada since they facilitated the continued operation of 

the Canadian corporation B in Canada. Perusing the service agreement itself confirms 

as much. It 1) describes the service recipient as C, the Canadian corporation acquiring 

B’s assets, 2) contains a clause specifying that the “Agreement is governed by and will 

be interpreted and construed in accordance with the laws of the Province of Ontario and 

the federal laws of Canada applicable therein” and 3) characterizes the nature of the 

services to be those relevant to the interim operation of and preservation of assets

belonging to B in Canada. Being interim and involving operations outside Texas hardly 

denotes Searcy’s reference to the performance of continuing, wide-reaching obligations

directed at or in Texas. See e.g., Epicous Adventure Travel, LLC v. Tateossian, Inc., 573 

S.W.3d 375, 386 (Tex. App.—El Paso 2019, no pet.) (observing that a one-time sale with 

a limited-duration relationship was insufficient to establish specific jurisdiction).

As for C’s reference to the indemnity provision within the asset sales agreement, 

the impact of that suffers from like deficiency. The clause fails to specify any place of 

performance, much less one in Texas. And while D and E may fall within the general 

ambit of indemnitees, they are but two of many within the category. Those many may 

well be scattered throughout Canada and the United States depending on the nature of 

claim. This and the possibility of D and E, as well as an unknown number of other people 

or entities throughout North America, being indemnitees if ever a claim is asserted is 

nominal evidence of performance implicating Texas hospitality. Indeed, the purported 
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link to Texas depends more on the happenstance of the indemnitee being in Texas than 

it does on seeking benefit from Texas. 

Ninth, we cannot escape the impact of one other fact. The choice of law provision 

agreed to by all involved specified Canada, not Texas. Nor does the contract require 

disputes to be resolved in a Texas forum. Though C may want to minimize the effect of 

those circumstances, one would be “hard put to discern purposeful availment of Texas 

law” from them. Searcy, 496 S.W.3d at 76; see IRA Resources, Inc. v. Griego, 221 

S.W.3d 592, 598-99 (Tex. 2007) (noting the agreement’s stipulation that any disputes be 

governed by California law as indicating there was never an intention by defendant to 

avail itself of Texas law). 

The trial court got it right. Upon assessing the three considerations mentioned in 

State against the record at bar, we find no purposeful availment of Texas privilege by 

Valsoft or Interdev. There were contacts by them with Texas. But, the quality and nature

of those contacts were nominal, on balance. In effect, any link to Texas was fortuitous 

rather than purposeful. Like Mr. Lovett’s girl from Georgia, A and B may have wondered 

about Texas hospitality but neither submitted to it for jurisdictional purposes. So, they too

grow smaller in the mirror as we watch them wave goodbye and affirm the trial court’s 

order of dismissal. 

Brian Quinn

Chief Justice