## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00104

- CV

NWR GEORGIA CONSTRUCTION, LLC , Appellant
V. MASTER WOODCRAFT CABINETRY, LLC, AND MCW INDUSTRIES, LLC , Appellee s

On Appeal from the 71st District Court Ha r r ison County, Texas Trial Court No. 21

- 0302

Before Morriss, C.J., Stevens and Carter , * JJ. Opinion by Chief Justice Morriss

_____________ *Jack Carter, Justice, Retired, Sitting by Assignment2 

### O P I N I O N
In this interlocutory appeal from the trial court’ s order overruling NWR Georgia Construction, LLC’s (NWR) , special appearance 1 in a lawsuit filed against it by Master Woodcraft Cabinetry, LLC (MWC) , and M CW Industries, LLC (M CW Industries) , the principal issue s are whether NWR consented to per sona l j urisdi ction in Texas and whether NWR was subject to specific jurisdiction in Texas

. Because we conclude that (1) NWR did not consent to being sued in Texas and (2) NWR was not subject to specific jurisdiction in Texas, we reverse the trial court ’ s orde r a nd rem and for further proceedings.
I. Factual and Procedural Background
NWR , a Georgia limited liability company with its principal place of business in Charlotte, North Carolina , was the general contractor for a multifamily project in Decatur,
Ge o rgia , known as Scott Crossing. In late 2019 and early 2020, NWR sub contracted with MWC to build cabinets for the Scott Crossing project and sub contracted with M CW Industries to install the cabinets constructed by MWC

. 2 In connection with the sub contract s , Ro za n na L ewa ne, vice president of credit for MWC, asked Casey White, vice president of construction for NWR , to sign a credit application containing a forum

- selection clause identifying Harrison County , Texas , as the forum for resolution of any dispute s. Th e c redit a pplication included a paragraph entitled “Agreement , ” followed by a signature line , and a separate paragraph entitled “Guaranty,”

1 See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 51.014(a)(7) (Supp.)

.
2 The sub contract between NWR and MWC was label ed SC

- 030 while the s ub con tract between N WR and M CW Industries was label ed SC

- 0 46 (c ollectively r ef e rred to as “ the subc ontracts ” ).3 followed by a separate signature line. The agreement section of the cre dit application stated, in pertinent par t : I n co n siderat ion of the extension of credit to the Purchaser by MWCC/MCW Ind. , if credit is extended, Purchaser agrees that this transaction is consummated in Harrison County, Texas [,] and agrees that jurisdiction an d venue for any suit arising out of a ny r el at i onship bet ween Purchaser and MWCC/MCW Ind. under any theory of law or any cause of action shall be only in the appropriate County or State Court in Harrison County, Texas [,] and Purchaser expressly agrees and cons ents to jurisdiction and venue in sa id Sta t e and County. In further consideration of the extension of credit by Seller to Purchaser, the Purchaser expressly agrees that no removal to any United States District Court or transfer of venue (Federal or State) shall ever be sought by Purchaser a nd Pur c haser hereby waives any objection to in personam jurisdiction and venue and agrees to make no request to transfer any suit to any other Court, other than the appropriate County or State Court in Harrison County, Te xas. MWCC/MCW Ind. will not, und er a ny c i rcumstances, participate in arbitration. When he received the credit application, White emailed L ewane , stating: Please find attached as requested. More than a credit application, this seems to look to define legal terms that contra di ct the p rojec t an d subcontract information. Also there is no personal guarantee here but I have also attached the project funding letter from PNC Bank. If signature is required on [ a n] application without such info please let me know and I can provide; ot herwise I have s i g ned our credit resume for your review and reference. Let me know if you have any questions or require anything further at this time to complete these subcontracts, thanks

. The credit application was included in the emai l from Whi te to Lewane, but Wh i t e had marked a red line through the guaranty portion of the application and had not signed the agreement portion of the application , instead writing: “N/A

– All payment terms p er issued subcontracts SC

- 030 & SC

- 046,” as ref le cted bel ow in the doc u ment r e t urned to Lewane:4 Lewane emailed White following receipt of this document , “THANKS

-- CAN YOU
SIGN THE AGREEMENT PORTION , ” to which White responded, “Sure thing , P l ease find attached.” This ti me , White had signed th e agreement portion of the cre dit ap p l ication, but had marked through it with a red line as follows:5 As indicated, White had written in red lettering that the agreement portion was “N/A” and that “ [a] ll payment terms [were ] per issued subcontra ct s SC

- 030 & SC

- 046.” White also email ed L ew a n e, along with the credit application shown above, its credit resume and a letter from PNC Real Estate indicating that “the loan in the name of NR Decatur Crossing Property
Ow ner II LLC for the ‘ Sc ot t Crossi ng ’ project [had] been closed and [was] ex pect ed a vailable to be drawn on.”6 After the subcontracts 3 were executed, the parties executed addendums to the subcontracts. The addendum to subcontract SC

- 030 st ated, in paragraph two , “ Master
Wo odc raft Cab inetry, LLC’s credit application, and approved shop d r a wings and approved samples are AN integral part of th is agreement and take precedence over plans, specs, and all other contract documents. ” Paragraph fourteen of the addendum s tat ed: The terms noted i n this Addendum are binding upon both parties c ontr ar y to any other terms expressed in the foreg oing Purchase Order/Subcontract. In the even t of a conflict between contract documents, this Add endum shall govern. This Addendum beco mes effecti ve and bindin g upon release of first order to manufacturing.
Th e a d dendum to subcontract SC

- 030 was signed by White and Lewane on January 15, 2020 , on behalf of NWR and MWC, respectively. The addendum to subcontra ct SC

- 046 s tated, in
par agraph two , “ M CW Industries, LLC’s Credit application become [sic] an integra l pa rt o f this agreement.” Paragraph thirteen of that addendum stated , “This Addendum b ecomes effective and binding upon commenceme nt o f work.” The addendum to subcontract SC

- 046 w as signed by White and Lewane on January 15, 2020 , on behalf of NWR and MC W In du s t ries , respectively. In March 2021, MWC and M CW Industries filed suit against NWR , alleging , in their fi rst amended petition, that NWR failed to pay in accordance with the subcontracts . MWC and MCW Industries sought a declaratory judgment that N WR o we d MWC $79,725.78 and owed MCW Industries $53,061.18 and further stated a c laim for qua ntum meruit. NWR filed a verified special appearance, claiming that the trial court did not hav e general or specific personal

3 The subcontracts included in the appellate recor d were signed by MWC and MCW Industries on January 15, 2020 , but lack NWR ’s signature. Neith er pa rty disputes tha t they entered into legally bindin g su bco nt racts.7 jurisdiction and t hat the forum

- selec ti on c l a use in the credit application could not be invok ed to

su pport jurisdi ction because the clause was unambiguously stricken from the credit agreement. 4 In response, MWC and MCW Industries claim ed that NWR agreed to the for u m - selection clause in the cre di t application, claiming that White only obje cted t o it bec ause “all pay ment
terms [were] per issued subcontracts SC

- 030 & SC

- 046 ” and that he did n ot “expressly state that any other term was not applicable.” They further argu ed that the forum

- select ion cl a u se was enforceable becau se , afte r the cr edit applicat ion was signed, NWR agreed to incorporate the credit application into each of the subcontracts. Alternatively, MWC and MCW Industries argued that Texas had specific juri sdiction over NWR. 5

4 NWR a tt a ched the following documents to its verified special appea rance:

• The unsworn declaration of its vice president and general coun sel, Mic hael Wilson;
• The unsworn declaration of Case y White;
• A sign ed copy of the cr edit application showing b oth the agre e me n t and guaranty paragraphs marked through;
• NWR’s credit re sume submitted to MWC and MCW Industries;
• PNC Real Estate’s letter in dicating that the loan for the Scott Crossing pr o ject had been closed ; and
• The e

- mail chain between Wh ite and L ewane regard i ng t he credit application

.
5 MWC and MCW Industries attached the following documents to its verified response to NWR’s special appe arance:

• The declaration of John Cathey, the exe cutiv e vi ce president and chief financ ial officer of bo th MWC an d MCW Indust r ie s ;
• A blank credit application;
• The e

- mail chain between W hite and Lewane regarding the credit application;
• Th e initial credit applicat ion with the guaranty paragraph marked t hroug h;
• NWR’s credit resume submitted to MWC and MCW I ndustries ;
• PNC Real E st a te’s letter indicating that the loan for the Scott Crossin g project had been closed;
• The final version of the credit applicatio n signed by White, with both the agreement and g uaran ty paragraphs ma rked through;
• Su bcontract s SC

- 030 and SC

- 0 46 ;
• The a dd e nd u m to subcontract SC

- 046; and
• Th e a ddendum to subcontract SC

- 030.8 Fo llow in g a hearing, the trial cou rt issue d its or der denying N WR’s verified special
appearance. II. Standard of Review “On appeal, we review de novo the trial court ’ s determination to grant or deny a special appearance.” Hitachi Shin Din C able, Ltd. v. Cain , 1 0 6 S.W.3d 776, 781 (Tex. App.

— Tex arkana 2 003, no pet.)

. “Whether a trial court has personal jurisdiction over a nonresident defendant is a question of law that we review de novo.” Wilco Farmers v. Carter , 558 S.W.3d 197, 2 01 (Tex. App.

— Texarkana 2 018, n o pet.) (quoting Old Repub lic Nat ’ l Title Ins. Co. v.
B ell , 549 S.W.3d 550, 558 (Tex. 2018) (citing Moncrief Oil Int ’ l Inc. v. OAO Gazprom , 414 S.W.3d 142, 150 (Tex. 2013))). “In a de novo review, the reviewing court conduct s a review of the record to m ak e its own legal determinat ions and conclus ions.” Nissa n N. Am., Inc. v. Tex. Dep ’ t of Motor Vehicles , 592 S.W.3d 480, 486 (Tex. App.

— Texarkana 2019, no pet.) (citing Quick v. City of Austin , 7 S.W.3d 109, 116 (Tex. 1998)). “When no findi ngs of fact and

c o n clusions of law are made by the trial co urt, ‘we infe r “all facts necessary to support the judgment and supported by the evidence.”’” Wilco Farmers , 558 S.W.3d at 201

– 02 (quoting Moki Mac River Expeditions v. Drugg , 221 S. W.3d 569, 574 (Tex. 2007) (qu ot i n g BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 7 89, 795 (Tex. 2002))).
“Texas courts m a y assert in personam jurisdiction over a nonresident if (1) the Texas long

- arm statute authorizes the exercise of jurisdiction, and (2) the exerc ise of juri sdic ti o n is consistent with fede ral and state co nstitutional due

- process guarantees.” Schexnider v. E

- Cig Cent., LLC , No. 06

- 20

- 00003

- CV, 2020 WL 6929872, at *4 (Tex. App.

— Texarkana Nov. 25,9 2020, no pet.) (mem. op.) (quoting Moki Mac , 221 S.W.3d at 574 ( citi ng S chlobohm v. Schapiro , 784 S.W.2d 355, 356 (Tex. 1990))). “ The Texas ‘ long

- arm statute describes what, “ [ i]n addition to other acts, ” may constitute doing business in this state. ’ ” Id

. ( quoting Moki Mac , 221 S.W.3d
at 574 ). “[T]he long

- arm statut e ’ s br o a d d oing

- business language allows the statute to ‘reach as far as the federal constitutional requirements of due process will allow.’” Moki Mac River Expeditions v. Drugg , 221 S.W.3d 569, 57 5 (Tex. 2007) (quoting Gu ardian Royal Exch. Assurance, Ltd . v. E n g lish China Clays, P. L.C

. , 815 S.W.2d 22 3, 226 ( Tex. 1991)). However, when “a party contractually consents to jurisdiction in a particul ar forum, then the due

- process and minimum

- contacts analysis is unnecessary.” G uam Indus

. Serv s. , Inc. v.
Dresse r - Ra nd C o
. , 514 S.W.3d 828, 833 (Tex. App.

— Housto n [1st Dist.] 2017 , no pet.) (citing
In re Fisher , 433 S.W.3d 523, 532 (Tex. 2014) ( “[A] contractual ‘consent

- to

- jurisdiction clause’ subjects a party to personal jurisdi ction, making an analysis of that par ty’s c o n tacts with the foru m for personal j urisdiction purposes unn ecessary.”)). “ We review a trial court ’ s decision whether to enf orce a forum

- selection clause for an abuse of discretion, except when our review invol ves contractual interpretation of the foru m - s e lection clause, for which we employ a de novo standard of r eview. ” Id

. As a result, we must initially determine whether NW R consented to jurisdiction in Texas. In the absence of such consent, we then determi ne whether NWR was subject to specific jur is d i ction in Texas.10 III. Analysis
A. N WR Did N ot Consent to Pe rsonal Jurisdiction in Texas MWC and MCW Industries contend that NWR consented to personal jurisdiction via the forum

- selecti o n clause included in the credit application. “Forum

- selection clau se s are contractual arrangements whereb y parties a gree in advan ce to submit their disputes for resolution within a particular j urisdiction.” RSR Corp. v. Siegmund , 309 S.W.3d 686, 700 (Tex. App.

— Dallas 2010, no p et.) (citing Burger King Corp. v. Rudze wicz , 4 7 1 U.S. 462, 473 n. 14 (1985); Phoen ix Network Techs. (Eur.) Ltd. v. Neon Sys., Inc

. , 177 S.W.3d 605, 611 (Tex. App.

— Houston [1st Dist.] 2005, no pet.) (“A forum

- selection clause is a cre ature of contract.”) )

.

“ Contractual forum

- selection clauses are gen er a l ly enforceable in Texas. ” In re
N

ationwide I ns. Co. of Am

. , 494 S.W.3d 708 , 712 (Tex. 2016) (orig. proceeding) (citing In re AIU Ins. Co

. , 148 S.W.3d 109, 112 (Tex

. 2004) (orig. proceeding) ). “Forum

- selecti on clauses are typ ically considered mate rial a n d therefore require express assent to become binding.” Long Island Pipe, Inc. v. QT T rad ing, LP , N o
. 01

- 18

- 00012

- CV , 2018 WL 3353015 , at *6 (Tex. App.

— Houston [1st Dist.] July 10, 2018, no pet.) (mem. op.) (q uoting J .D. Fields, Inc. v. Indep.
Enter s., In c
. , No. 4:12

- CV

- 2605, 2012 WL 5818229, at *7 (S.D. Tex. Nov. 13, 2012)). We therefore exa mine the evid ence to determine whe ther the parties expressly assented to the forum

selection claus e, thus making it part of the subcontracts agreed to by the pa rtie s. We determine whether the parties agreed to the forum

- selection clause b y using ordinary principles o f contract interpreta tion. Siegmund , 309 S.W.3d at 700. As outlined above, the evid ence reflects that L ew ane , on behalf of M WC and M CW Industries , as ke d White, on behalf11 of NWR, to sign a credit application that provided tha t the “ transact ion [was] consum mated in Harrison County,” that “jurisdiction and venue for any suit arising out of a ny relationship” betwe en NWR and MWC/MCW Industries “shall be onl y i n the appropriate County or State Court in Harrison County, Texas,” and that NWR “expre ssly a gree [d] and consent [ed] to jurisdiction and venue in said State and County.” Rather tha n signing the appl ication, White responded that the document submi tted t o NWR was “ [ m ] ore than a credit application ” and that it “define[ d] legal terms t hat contradict [ed] the project and subcontract information.” White then asked L ew ane to let him know whether “signature [ was ] required on t he application without such
i nfo

. ” W hite then stated , “ [O] therwise, I have s igned our credit resume.” A lon g - standing rule of Te xas common law is that “an acceptance is effective only if it matches the material te rms of t he offer to which it responds.” Amedisys , Inc. v. Kingwood Ho me H

ea l t h Care, LLC , 437 S.W.3d 507 , 512 (Tex. 2014) (citing U nited Concrete Pip e Corp. v. Spin

Line Co

. , 430 S.W.2d 360, 364 (Tex. 1968)). If an attempted acceptance changes or qualif ies a
mat erial term from the offer, the attempt operates as a rejection and c o u nteroffer. Id

. at 514. As applicable here, the evide nce shows that M WC and M CW Industries e xtended an offer to NWR to enter into an agreement regarding forum, as included in th e credit application. NWR rejected the offer to sign the credit appli cati on a s presented and thereby di d not expressly agree to th e forum

- selection clause within the app lication. That rejection operated as a counteroffer because White agreed either to s ign the application “without such information ” or to rely solely on its12 sig ne d credit resume. 6 L ewane responded by asking White to sign the “agreeme nt portion” of the ap plication, which included the forum

- selection clause. White did so, but only after marking
t hrough the entire “agreement portion” of the application and onl y af te r noting at the top of the document that it was “N/A

- All paym ent terms per issued subcontra cts SC

- 030 & SC

- 046.” Although M WC and M CW Industries contend that , by this l anguage, White only disagreed with the payment terms rather than with the e n t ir ety of the “agreement” section of the credit application, White al so struck the entire a greement portion of the credit application before signi ng it , as indicated above. T his a mounted to a rejection of the “agreement” portion of the application, inc lu d i ng the f orum - selection clause contained within the agreement. See G .D

. Holdings, Inc. v. H.D.H. Land & Timber, L.P

. , 407 S.W.3d 856, 861 (Tex. Ap p.

— Tyler 2013, no pet.) (finding that parties did not have meeting of minds on essential contract term whe n t e rm pertaining to earnest money was struck ). Nevertheless, the parties entered into the subcontracts in the absence of NWR’s express assent to the terms of the credit applic ation. 7 Despite this fact, M WC and M CW Industries contend that the cre dit app li c a ti on became a valid and binding part of e ach subcontract based on the language of ea ch addendum

— as recited above

— which purported to incorpo rate the credit agreement. To the extent that M WC and
M CW Industries contend that the original, pre

- negot iated, un m a rk ed credit application was

6 In his unsworn declaration, White explained that “NWR was not willin g to agr ee to Plaintiffs’ terms on their cred it application a nd would only s ign the application ‘without such info.’ ” W hite further explain ed that , after Lewane asked that he sign the ag reement portion, he “marked out the terms and cond itions in red as se t forth o n Exhibit 2

- 1 and sent the same to M s. Lewane.”

7 Wh et her NWR’s actions are interprete d as a co unteroffer o r a n outright rejection of the terms of the credit agreemen t

— given the fact that it expressly struck through the language of the agreemen t

— the result is the same: the absence of N WR’s express assent t o the credit agreement. See Long Island Pi pe, Inc. , 20 1 8 W L 3353015 , at *6.13 incorporated into the subcontract s, w e reject this argu ment as our sister court rejected a similar argument in Long Island Pipe , 2018 WL 3353015 , at *1

. In that case, Long Island Pipe plac ed an order for pipe w ith Merfish Tradin g. After the order was placed, Merfi sh informed Lon g Island that it was first required to sign a credit application, c ertain terms and condi t i ons, and a personal guarantee contained within a “New
Accoun t Document Packet.” I d

. at *2. The terms and condit ions portion of the pack et included a forum

- sel ection clause. Id

. Merfish then indicated that it only needed the sign ed credit application, b ut the signature line was located at th e bottom of the terms and conditions of sal e, indicating that the c redit a pplication and the terms and conditions constit uted a single document. Id

. In response, Long Island sent Merfish its company credit applica t i on and trade references. Id

. Merfish responded that it sti ll required a credit a pplication from Long Isl and. I d

. When Long Island did not provide the signed credit application, Merfish again requested the signed application. Id

. at *3. Long Island r e sponded stating that its ord er should b e canceled if the si gned credit applicatio n was required. Id

. Fol lowing a telephone discussion, Long Island sent Merfi sh a completed , but unsigned , credit application

. Merfish then supplied the requested pipe and i nvoiced Long Island for each s hipment

. Each invoice included the statement , “ O u r general terms & conditio ns appl y to this transaction.” Id

. at * 3

– 4. When Long Isla n d did not pay in full, Merfish filed suit. Id

. M erfish asserted that the trial court h a d personal jurisdiction o ver Long
I sland because the inv oices incorporated Mer fish’s standard terms and co ndition s, including the forum

- selection claus e. Id

.14 Long Island filed a special appearance, stating that the forum

- selection clause was part of
t h e terms and conditions of the credit application, which i t had expressly reject ed. Id

. Applying provision s of th e Texas Business and Commerce Code, th e court concluded that Long Island offered to buy the pipe on the express condition that it did not hav e to sign the credit applic ation. By shipping the pipe wi thout receiving a sign ed credit application, the c ourt co ncluded that Merfish accepted Long Isl and’s counteroffer. Id

. at *6. The court further concluded that , because forum

- selection clauses are m a terial and require express assent to become binding, the language on the invoic es submitted by Merfish did not in corporate the forum

- selection clause
i nto the contract. Id

. Even though this case is different than Lo ng Island Pipe in that NWR signed the

s ubcontract addendums , which purported to incorporate the c redit application, NWR never assented to the ter ms of t he credit application and , in fact , had e xpressly rejected it. MWC and MCW Industries’ contention that , by signing the addendums, NWR revive d the original, unmarked, pre

- neg otiated c redit application, inc ludi ng the forum

- selec tion clause, ignores t he real ities of the parties’ negotiations regar ding the credit application and NWR’s repeated refusal to agree to it. NWR’s repeated rejection of t h e terms of the credit application contain ing the forum

- selectio n clause indicates tha t NWR never intended t he foru m - selection clause to become part of t he subcontracts. Assuming , without deciding , that the langua ge in the addendums was sufficient to inc o r porate the c redit application into the subcontracts, we concl ude that only the fina l, negotiated credit ag reement marked through by White w as so inco rporated. This was not a futile15 act, as the negotiated credit application provided M WC and M CW Industrie s with inform ation to determine NWR’s cr edit worthiness

. 8
Beca use NWR did not assent to the forum

- selection clause in the credit application and becau se the original agreement portion of the credit application was not incorporated into the subcontracts vi a t he addendu ms, we conclude that NWR did not consent to person al jurisdiction in Tex as. B. NWR Was not Subje ct to S pecific Jurisdiction in Texas
M WC a nd M CW Industries’ First Amended Original Petition include s the following jurisdictional allegations : 9
De f endant , NWR Georgia Construction, LLC ( “ Shaw ” ), engages or h as engaged in business in this state, but does not ma intain a regular place of business or a designated agent for service of process. This lawsuit ari ses out of business done in this state and t o which said Defendant is a party. The refore, under Section 17.044 of th e Texas Civ il Practice and Remedie s Code, [ 10 ] substituted service on Defendan t should be made by serving the Secretary of State of Texas

. . . .

. . . .

8 The first page of the credit applicat ion indicated that trade references and banking r eferences were atta ched. The evidence indicates that the actual docume nts a ttached to the c re dit application included NWR ’s c redit res ume as well a s a letter fr om PNC Real Estate Banking confirming that the loan for the Scott Cross ing Project had closed and was available to be drawn on.

9 We recite only those allegations tha t do not rely on the forum

- selection clause in the cred it applic ation.

10 Sec t io n 17.044( b) the Texas Civil Practice and Remedies Code states : The secretary of state is an agent for service of proces s on a nonr esident who engages in business in this state, but does not maintai n a regular place of business in t his state or a design a te d agent for service of process, in any proceeding tha t arises out of the business done in this state and to which the no nresident i s a party.
T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 17.0 44(b).16 . . . . Venue in Harris on County is proper i n this cause because the parties have agre ed in writing that venue is proper here and on ly here , or, in the alternative, all or a substantial part of the events giving rise to the claim occurre d in Harrison County

. [ 11 ]

. . . .

. . . . T he Defendant applied for cred it in Harrison County, Texas [,] and the Plaintiffs agreed to extend credit to the De fe ndant.

. . . The Def endant entered into contracts with MWCC to buy cabinets on cre dit and with MCW for cabinet installation . . . .
“A n on r esident defendan t’s forum

- state contacts may give rise to two types of personal jurisdiction.” Moki Mac , 221 S.W .3d at 575 (citing BMC Software , 83 S.W.3d at 795

– 96). “If the defendant has made conti nuous and sy stematic contacts with the fo rum, gener al jurisdiction is established whether or not t he defendant’s alleged liability arises from those contacts.” Id

. (ci ting BM C Software , 83 S.W.3d at 796). Conversely, “ s pecific jurisdiction ‘ may be asserted when th e defendant’s forum contacts

a re isolate d o r sporadic, but the plaintiff’s cause of act ion arises out of thos e contacts with the
state. ’ ” Spir Star A G v. Km ich , 31 0 S.W.3d 868, 873 (Tex. 2010) (quoting 4 C HARLES A LAN W RIGHT & A RTHUR R. M ILLER , F EDERAL P RA C TICE & P ROCEDURE § 1067.5 (3d ed. 2002) ). “In such cases , ‘we focus on the “ relationshi p among the defendant, the forum[,] and the litigation. ” ’” I d

. (alt eration in original) (quoting Moki Mac , 221 S.W.3d at 57 5

– 76 )

. “Specific jurisdicti on is appropriate when (1) th e defendant’s co n tacts with the forum state are purposefu l, and (2) the cause o f action arises fr om or relates to the defend ant’s contacts.” I d

. (citing Retamco Operatin g, Inc. v. Republic Drilling Co

. , 278 S.W.3d 333, 337 (Te x. 2009)). “For a

11 Although we read these venue allegations b roadly , M WC and MCW I n du s tries do not allege, nor have they ever alleged, t hat NWR is subject to general jurisdiction in Texas.17 Texas foru m to properly ex e rcise specific jurisdiction in this case , (1) [NWR] must have made minimum conta cts with Texas by purposefu lly availing itself of the privilege of conduc ting activities here, and (2) [NWR’s] liability must have arisen from or [be] related to th ose contacts.”
M o ki Mac , 221 S.W.3d at 57 6

. In determinin g whether a nonresiden t defendan t purposefully availed itself of the
p rivilege of doing business in Texas, we consider “only the defendant’s contacts with the forum

. . . , not the unilateral activity of anothe r p arty or third person.” Moki Mac , 22 1 S.W.3d at 575

. We likewise consider whether the contacts relied on a re “purpos eful rather than random, fort uitous, or attenuated.” Retamco Operating, In c. v. Republic Drillin g Co

. , 278 S.W.3d 333, 339 (Tex. 2009)

. “ F inally, the defendant mus t seek some benefit, a dvantage or profit by availing itself of the juris diction.” Id

. “The pu rpose of a minimum contacts analysis is to protect a nonresident defendan t from being haled into court when its relationship with th e f o rum state is
too attenu ated to support jurisd iction.” Internet Advertising Grp. , Inc. v. Accud ata, Inc , 3 0 1 S.W.3d 383, 388 (Tex. App.

— Dallas 2009, no pet .) (citing Am

. Type Culture Collecti on , Inc. v. Coleman , 83 S.W.3 d 801, 806 (Tex. 2002)). Our e xami nation of thes e factor s lead s us to

c onclu de that NWR did not purposefully avail itself of the privilege of conducting ac tivities in
Texas. It is undisputed that NWR is a Georgia company wi th it s principal place of busines s in North Carolina. It is al so u ndisputed that N WR does not maintain a place of business in Texas and does not have employees or agents in this state and that it is not required to maintain a18 registered agent for service in T exas. 12 MWC and MCW Industri es do not contend that NWR’s fo rum contacts give r i se to general jurisd iction in Texas. Instead, the parties join issue on whether NWR is sub ject to specif ic jurisdiction in Texas.
NWR entered into subcontracts with MWC an d MCW Industries, both of which a re Texas companies. The subcon trac t with MWC pro v i ded th at MWC w ould b uild c abinets for
NWR while the subcontract with MCW Industries provide d that M CW Ind ustries would install the cabinets after they had been constructed. Contrary to the allegations of M WC and M CW Industr ies , though, the cabinets were n ot construct ed on credit, as the credit application had been expressly rejected. While it is true that NWR contracted with Texas companies MWC and MCW Indust ries, we observe “ that a n individual ’ s contract with an out

- of

- sta te party al one [ cannot ] autom a t ically establish suf ficient minimum contacts in the other party’s home forum.” Burger King Corp. v. Rudz ewicz , 471 U.S. 462, 478 (1985)

. To evaluate purposeful availment in the context of a contract, we look to such fa ctors as “prior nego tiations and c o n templ ated future consequences, along with the terms of the contract and the parties’ actual course of dea ling.” Id

. at 479.
I t is apparent from th e record that prior negotiations took place regarding the credit applic ation, as previ ousl y explained. T h ose n egotiations led to the execution of the subcontracts

12 In his unswor n declarati on, Michael Wilson, the vice president and ge ne ral c ounsel of NWR , st ate d : NWR is a limited liability company t hat is incor p or a ted in Georg ia and maintains its principal pl ace of business in Charlotte, North Carolina. NWR does not conduc t any busine ss in Texas, does not own or lease personal o r real p roper ty located in Te xas, does not advertise in Texas, does not maintain a p e rs o nal or busin ess office, place of business or other facilities or residences in Texas, does not maintain a telep hone listing or mailing address in Texas, does not mainta in any o ffice rs, directors, o r employees in Texas, and no owner s of NWR live in Texa s
. NWR has never applied for or received a loan o f money in Texas and does not maintain bank accounts in Texas, an d does not ow e or pay taxes in Texas.19 in the absence of agreement on th e forum

- select ion clause in the credit application. From t h ose negotiations, we observe that , because NWR determi ned not to agree to the forum

- s elec tion language i n the c redit application, it did not wish to be haled into a Texas Court. See Siskind v.
Vi lla Found. f or Educ., Inc

. , 642 S.W. 2d 434, 437 (Tex. 1982 )

. More impor t a ntly, though, is the fact that both subcontracts included identical arbitration provisions and choice of law provisions. The arbitration provision i n each subcontract provided, in p ertinent part: Any cla im or dispute between the Subc ontrac tor and the Co n t racto r shall, at the sole option of the Contractor be determined in accordance with any disputes procedure set forth in t he Contract Documents, or at the sole option of Contractor, b y litigation o r bindin g arbitration in accordance wi th the Am erican Arbi t r ation Association’s (“AAA”) Construction Industry Arbitration Rules, then in effect, and Subcontractor shall be bound by such determination and shall comply fully with the same. Me d iation of any claim or dispute shall be conducted pr ior to li tigation or a rbitr ation. At the sole option of Contractor, any such mediation shall also be conducted in accordance with the Mediatio n Rules of the AAA then in e ffect; provided, however, that t h e mediation it self may be conducted by a mediator ag reed t o b y the Contr a c tor a nd Subcontractor without the need to use the AAA. Such mediation shall be conducted within thirty (30) days of a re quest by contractor. . . . N o claim, dispute, mediation, ar bi tration or lit igation, shall interfere with the prog ress o f t he Work, an d Subco ntractor shall proceed with the Work despite the existence of any claim, dispute, mediation, arbitration or litigati on.
. . . The location of an y mediation or arbitration pro cee ding shall be, at Cont ractor’s sole discretion, the Projec t l ocation or i n Char lotte, North Carolina. (Emphasis added). Each subcontract also provided that “[t]he validity, interpretation and performance of its Subcontract shall be in accordance with t he law s of the State of Ge orgia. ”

“ [ C ] hoice

- of

- law provis ions should no t be ignored in considering whether a defendant has ‘ purposefully invo ked the benefits and protections of a State’s laws

. ’ ” Michiana Easy Livin’ Country , Inc. v. Holton , 168 S .W.3d 77 7, 792 (Tex . 2 005) (quoting Burger King , 471 U.S. at 482). NWR’s d e letion of the forum

- selection clause in the credit application is so me evidence20 that it did not anticipate local jurisdiction , and its “insertion of a clause desi gnating a foreign forum su ggests that no l ocal availment was intended.” Id

. at 7 92 ; see J.A. Riggs Tr a c t or Co. v. Bentley , 209 S.W.3d 322, 332 (Tex. App.

— Texarkana 2006, no pet.) (forum

- selection clause indicated that Riggs anticipated suit elsewhere and w as “not availing itsel f o f the benefit of Texas’ laws ”) ; see also EnerQuest Oi l & Gas, L .L.C. v. Ante r o Resources Corp

. , No. 02

- 18

- 00178

- CV, 2019 WL 1583921, at *6 (Tex. A pp.

— Fort Worth Apr. 11, 2019, pet. dism’d) (mem.
op .) (agreement containing Oklahom a forum

- selection claus e an d Delaware cho ice

- of

- law clause suggest that EnerQues t “purpose fully avoided ” T exas). We , therefore , conclude that the inclusion of a Georgia choice

- of

- law provision and Georgia ( p roject location) or Charlotte, North Carolina , fo rum - selection clause in ea ch of the subc ontracts indicates that NWR did not atte m pt
to av ail itself of t h e benefits of Texas’ laws. Although each of the su bcontracts require d MWC and MCW Industries to make application for monthly progress payments to NWR in Charlotte, North C aro lina (email,

o vernight , or hand delivery) , the subcontr acts d id not provide f o r a place of payment. “When a contract requir es the paym ent of money but does not specify where the payment is to be mad e, the place of payment is the domicile of the payor. ” A ccudata, Inc

. , 301 S.W.3d at 389 (citing Buffet Partner s , L.P. v. Sheffield S q u are, L.L.C

. , 256 S.W.3d 920, 922 (Tex. App.

— D allas 200 8 , no pet.)). Finally, there is no evidence in the record of whe re the sub contract s w ere performed.
E ven assuming M WC co nstructed the cabinets in Texas (to be installed on loc ation in Georgia by M C W Industries), that fact is not outcome d eterminative. Ra ther, the “minimum

- contacts21 analysis focuses solely on the acti ons and reasonable expectations of the defendant.” Turn er Schilling, L

. L.P. v. Gaunce M gmt. , Inc

. , 247 S.W. 3d 44 7, 456 ( Tex. App.

— Dal l a s 2008, no pet.) (quoting Michi ana , 168 S.W.3d at 790 ) (concluding that other party’s performance of contractua l duties in Texas does not constitute purposeful contact by defenda nt i n Texas); see also Moncrief Oil Int’l v. OAO G azpro m , 481 F .3d 309, 312 ( 5 t h Cir. 2007) (contracting with resident of forum
st ate, combined with contract performance by resident party i n forum state , did not establish minimum contacts when non

- re sident defe ndant did not perform any of its own contractu al

o bligatio ns in forum s t a t e, contract did not require pe rformance there, and p urpose of contract centered in Russia)

. Here, the contract did not require performance in Texas , and the purpose of the cont ract w as cente red in Georgia. Based on the foregoi ng analysis , we conclude t h at MWC and MCW Industr ies have not shown that NWR pur posefully availed itself of the privilege of conducting act ivities within Texas and is thus not subject to specific jur isdic tion h ere. Se e Michiana , 168 S.W.3d at 784

– 85. 13

13 As a result of our analysi s, we need not determ ine whether MWC and MCW Industries ’ causes of action ar i se from contacts within this state.22 I II. Conclus ion
Because N W R did not consent to pe rsonal jurisdiction in Texas and because it is not subject to specific jurisdiction here, we reverse the trial court’s order and remand for further
pr oceed ings.

Josh R. Morriss, III Chief Justice
Date Su bmitted: De c em b er 30, 2021 Date Decided: March 1, 2022