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, Appellees

On Appeal from the 71st District Court

Harrison 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 Assignment
2

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 appearance1 in a lawsuit filed against it by Master 

Woodcraft Cabinetry, LLC (MWC), and MCW Industries, LLC (MCW Industries), the principal 

issues are whether NWR consented to personal jurisdiction 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 order and remand 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, 

Georgia, known as Scott Crossing. In late 2019 and early 2020, NWR subcontracted with MWC 

to build cabinets for the Scott Crossing project and subcontracted with MCW Industries to install 

the cabinets constructed by MWC.

2

 In connection with the subcontracts, Rozanna Lewane, 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 disputes. The credit application included a paragraph entitled 

“Agreement,” followed by a signature line, and a separate paragraph entitled “Guaranty,” 

1

See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7) (Supp.).

2

The subcontract between NWR and MWC was labeled SC-030 while the subcontract between NWR and MCW

Industries was labeled SC-046 (collectively referred to as “the subcontracts”). 
3

followed by a separate signature line. The agreement section of the credit application stated, in 

pertinent part:

In consideration 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 and venue for any suit 

arising out of any relationship between 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 

consents to jurisdiction and venue in said State 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 and Purchaser 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, Texas. MWCC/MCW Ind. will not, under any 

circumstances, participate in arbitration. 

When he received the credit application, White emailed Lewane, stating:

Please find attached as requested. More than a credit application, this seems to 

look to define legal terms that contradict the project and 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 [an] application without such info please let me know 

and I can provide; otherwise I have signed 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 email from White to Lewane, but White 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 per issued 

subcontracts SC-030 & SC-046,” as reflected below in the document returned to Lewane:
4

Lewane emailed White following receipt of this document, “THANKS -- CAN YOU 

SIGN THE AGREEMENT PORTION,” to which White responded, “Sure thing, Please find 

attached.” This time, White had signed the agreement portion of the credit application, 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 subcontracts SC-030 & SC-046.” White also 

emailed Lewane, 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 

Owner II LLC for the ‘Scott Crossing’ project [had] been closed and [was] expected available to 

be drawn on.” 
6

After the subcontracts3 were executed, the parties executed addendums to the 

subcontracts. The addendum to subcontract SC-030 stated, in paragraph two, “Master

Woodcraft Cabinetry, LLC’s credit application, and approved shop drawings and approved 

samples are AN integral part of this agreement and take precedence over plans, specs, and all 

other contract documents.” Paragraph fourteen of the addendum stated:

The terms noted in this Addendum are binding upon both parties contrary to any 

other terms expressed in the foregoing Purchase Order/Subcontract. In the event

of a conflict between contract documents, this Addendum shall govern. This 

Addendum becomes effective and binding upon release of first order to 

manufacturing.

The addendum to subcontract SC-030 was signed by White and Lewane on January 15, 2020, on 

behalf of NWR and MWC, respectively. The addendum to subcontract SC-046 stated, in 

paragraph two, “MCW Industries, LLC’s Credit application become [sic] an integral part of this

agreement.” Paragraph thirteen of that addendum stated, “This Addendum becomes effective 

and binding upon commencement of work.” The addendum to subcontract SC-046 was signed 

by White and Lewane on January 15, 2020, on behalf of NWR and MCW Industries,

respectively. 

In March 2021, MWC and MCW Industries filed suit against NWR, alleging, in their first 

amended petition, that NWR failed to pay in accordance with the subcontracts. MWC and MCW 

Industries sought a declaratory judgment that NWR owed MWC $79,725.78 and owed MCW

Industries $53,061.18 and further stated a claim for quantum meruit. NWR filed a verified 

special appearance, claiming that the trial court did not have general or specific personal 

3

The subcontracts included in the appellate record were signed by MWC and MCW Industries on January 15, 2020,

but lack NWR’s signature. Neither party disputes that they entered into legally binding subcontracts.
7

jurisdiction and that the forum-selection clause in the credit application could not be invoked to 

support jurisdiction because the clause was unambiguously stricken from the credit agreement.4 

In response, MWC and MCW Industries claimed that NWR agreed to the forum-selection 

clause in the credit application, claiming that White only objected to it because “all payment 

terms [were] per issued subcontracts SC-030 & SC-046” and that he did not “expressly state that 

any other term was not applicable.” They further argued that the forum-selection clause was 

enforceable because, after the credit application was signed, NWR agreed to incorporate the 

credit application into each of the subcontracts. Alternatively, MWC and MCW Industries 

argued that Texas had specific jurisdiction over NWR.5

 

4

NWR attached the following documents to its verified special appearance:

• The unsworn declaration of its vice president and general counsel, Michael Wilson; 

• The unsworn declaration of Casey White; 

• A signed copy of the credit application showing both the agreement and guaranty paragraphs marked 

through; 

• NWR’s credit resume submitted to MWC and MCW Industries; 

• PNC Real Estate’s letter indicating that the loan for the Scott Crossing project had been closed; and

• The e-mail chain between White and Lewane regarding the credit application.

5

MWC and MCW Industries attached the following documents to its verified response to NWR’s special 

appearance:

• The declaration of John Cathey, the executive vice president and chief financial officer of both MWC and 

MCW Industries; 

• A blank credit application; 

• The e-mail chain between White and Lewane regarding the credit application; 

• The initial credit application with the guaranty paragraph marked through; 

• NWR’s credit resume submitted to MWC and MCW Industries; 

• PNC Real Estate’s letter indicating that the loan for the Scott Crossing project had been closed; 

• The final version of the credit application signed by White, with both the agreement and guaranty 

paragraphs marked through; 

• Subcontracts SC-030 and SC-046; 

• The addendum to subcontract SC-046; and 

• The addendum to subcontract SC-030.
8

Following a hearing, the trial court issued its order denying NWR’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 Cable, Ltd. v. Cain, 106 S.W.3d 776, 781 (Tex. App.—

Texarkana 2003, 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, 201 (Tex. App.—Texarkana 2018, no pet.) (quoting Old Republic Nat’l Title Ins. Co. v. 

Bell, 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 conducts a review of 

the record to make its own legal determinations and conclusions.” Nissan 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 findings of fact and

conclusions of law are made by the trial court, ‘we infer “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) (quoting BMC 

Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002))).

“Texas courts may assert in personam jurisdiction over a nonresident if (1) the Texas 

long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is 

consistent with federal and state constitutional 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 (citing Schlobohm 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 statute’s broad doing-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, 575 (Tex. 2007) (quoting Guardian Royal Exch. 

Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991)).

However, when “a party contractually consents to jurisdiction in a particular forum, then 

the due-process and minimum-contacts analysis is unnecessary.” Guam Indus. Servs., Inc. v. 

Dresser-Rand Co., 514 S.W.3d 828, 833 (Tex. App.—Houston [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 jurisdiction, making an analysis of that party’s contacts with the 

forum for personal jurisdiction purposes unnecessary.”)). “We review a trial court’s decision 

whether to enforce a forum-selection clause for an abuse of discretion, except when our review 

involves contractual interpretation of the forum-selection clause, for which we employ a de novo 

standard of review.” Id.

As a result, we must initially determine whether NWR consented to jurisdiction in Texas. 

In the absence of such consent, we then determine whether NWR was subject to specific

jurisdiction in Texas.
10

III. Analysis

A. NWR Did Not Consent to Personal Jurisdiction in Texas

MWC and MCW Industries contend that NWR consented to personal jurisdiction via the 

forum-selection clause included in the credit application. “Forum-selection clauses are 

contractual arrangements whereby parties agree in advance to submit their disputes for resolution 

within a particular jurisdiction.” RSR Corp. v. Siegmund, 309 S.W.3d 686, 700 (Tex. App.—

Dallas 2010, no pet.) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n.14 (1985); 

Phoenix 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 creature of contract.”)).

“Contractual forum-selection clauses are generally enforceable in Texas.” In re 

Nationwide Ins. 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-selection clauses 

are typically considered material and therefore require express assent to become binding.” Long 

Island Pipe, Inc. v. QT Trading, LP, No. 01-18-00012-CV, 2018 WL 3353015, at *6 (Tex. 

App.—Houston [1st Dist.] July 10, 2018, no pet.) (mem. op.) (quoting J.D. Fields, Inc. v. Indep. 

Enters., Inc., No. 4:12-CV-2605, 2012 WL 5818229, at *7 (S.D. Tex. Nov. 13, 2012)). We 

therefore examine the evidence to determine whether the parties expressly assented to the forumselection clause, thus making it part of the subcontracts agreed to by the parties.

We determine whether the parties agreed to the forum-selection clause by using ordinary

principles of contract interpretation. Siegmund, 309 S.W.3d at 700. As outlined above, the 

evidence reflects that Lewane, on behalf of MWC and MCW Industries, asked White, on behalf 
11

of NWR, to sign a credit application that provided that the “transaction [was] consummated in 

Harrison County,” that “jurisdiction and venue for any suit arising out of any relationship” 

between NWR and MWC/MCW Industries “shall be only in the appropriate County or State 

Court in Harrison County, Texas,” and that NWR “expressly agree[d] and consent[ed] to 

jurisdiction and venue in said State and County.” Rather than signing the application, White 

responded that the document submitted to NWR was “[m]ore than a credit application” and that 

it “define[d] legal terms that contradict[ed] the project and subcontract information.” White then 

asked Lewane to let him know whether “signature [was] required on the application without such 

info.” White then stated, “[O]therwise, I have signed our credit resume.” 

A long-standing rule of Texas common law is that “an acceptance is effective only if it 

matches the material terms of the offer to which it responds.” Amedisys, Inc. v. Kingwood Home 

Health Care, LLC, 437 S.W.3d 507, 512 (Tex. 2014) (citing United Concrete Pipe Corp. v. SpinLine Co., 430 S.W.2d 360, 364 (Tex. 1968)). If an attempted acceptance changes or qualifies a 

material term from the offer, the attempt operates as a rejection and counteroffer. Id. at 514. As

applicable here, the evidence shows that MWC and MCW Industries extended an offer to NWR 

to enter into an agreement regarding forum, as included in the credit application. NWR rejected 

the offer to sign the credit application as presented and thereby did not expressly agree to the 

forum-selection clause within the application. That rejection operated as a counteroffer because 

White agreed either to sign the application “without such information” or to rely solely on its
12

signed credit resume.6 Lewane responded by asking White to sign the “agreement portion” of 

the application, which included the forum-selection clause. White did so, but only after marking 

through the entire “agreement portion” of the application and only after noting at the top of the 

document that it was “N/A - All payment terms per issued subcontracts SC-030 & SC-046.” 

Although MWC and MCW Industries contend that, by this language, White only disagreed with 

the payment terms rather than with the entirety of the “agreement” section of the credit 

application, White also struck the entire agreement portion of the credit application before 

signing it, as indicated above. This amounted to a rejection of the “agreement” portion of the 

application, including the forum-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. App.—Tyler 2013, no 

pet.) (finding that parties did not have meeting of minds on essential contract term when term

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 application.7

 

Despite this fact, MWC and MCW Industries contend that the credit application became a 

valid and binding part of each subcontract based on the language of each addendum—as recited 

above—which purported to incorporate the credit agreement. To the extent that MWC and 

MCW Industries contend that the original, pre-negotiated, unmarked credit application was 

6

In his unsworn declaration, White explained that “NWR was not willing to agree to Plaintiffs’ terms on their credit 

application and would only sign the application ‘without such info.’” White further explained that, after Lewane 

asked that he sign the agreement portion, he “marked out the terms and conditions in red as set forth on Exhibit 2-1 

and sent the same to Ms. Lewane.”

7

Whether NWR’s actions are interpreted as a counteroffer or an outright rejection of the terms of the credit 

agreement—given the fact that it expressly struck through the language of the agreement—the result is the same:

the absence of NWR’s express assent to the credit agreement. See Long Island Pipe, Inc., 2018 WL 3353015, at *6.
13

incorporated into the subcontracts, we reject this argument as our sister court rejected a similar 

argument in Long Island Pipe, 2018 WL 3353015, at *1. 

In that case, Long Island Pipe placed an order for pipe with Merfish Trading. After the 

order was placed, Merfish informed Long Island that it was first required to sign a credit 

application, certain terms and conditions, and a personal guarantee contained within a “New 

Account Document Packet.” Id. at *2. The terms and conditions portion of the packet included 

a forum-selection clause. Id. Merfish then indicated that it only needed the signed credit 

application, but the signature line was located at the bottom of the terms and conditions of sale, 

indicating that the credit application and the terms and conditions constituted a single document. 

Id. In response, Long Island sent Merfish its company credit application and trade references. 

Id. Merfish responded that it still required a credit application from Long Island. Id. When 

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

application. Id. at *3. Long Island responded stating that its order should be canceled if the 

signed credit application was required. Id. Following a telephone discussion, Long Island sent 

Merfish a completed, but unsigned, credit application. Merfish then supplied the requested pipe

and invoiced Long Island for each shipment. Each invoice included the statement, “Our general 

terms & conditions apply to this transaction.” Id. at *3–4. When Long Island did not pay in full, 

Merfish filed suit. Id. Merfish asserted that the trial court had personal jurisdiction over Long 

Island because the invoices incorporated Merfish’s standard terms and conditions, including the 

forum-selection clause. Id. 
14

Long Island filed a special appearance, stating that the forum-selection clause was part of 

the terms and conditions of the credit application, which it had expressly rejected. Id. Applying 

provisions of the Texas Business and Commerce Code, the court concluded that Long Island 

offered to buy the pipe on the express condition that it did not have to sign the credit application. 

By shipping the pipe without receiving a signed credit application, the court concluded that 

Merfish accepted Long Island’s counteroffer. Id. at *6. The court further concluded that,

because forum-selection clauses are material and require express assent to become binding, the 

language on the invoices submitted by Merfish did not incorporate the forum-selection clause 

into the contract. Id.

Even though this case is different than Long Island Pipe in that NWR signed the

subcontract addendums, which purported to incorporate the credit application, NWR never 

assented to the terms of the credit application and, in fact, had expressly rejected it. MWC and 

MCW Industries’ contention that, by signing the addendums, NWR revived the original, 

unmarked, pre-negotiated credit application, including the forum-selection clause, ignores the 

realities of the parties’ negotiations regarding the credit application and NWR’s repeated refusal 

to agree to it. NWR’s repeated rejection of the terms of the credit application containing the 

forum-selection clause indicates that NWR never intended the forum-selection clause to become 

part of the subcontracts. 

Assuming, without deciding, that the language in the addendums was sufficient to 

incorporate the credit application into the subcontracts, we conclude that only the final, 

negotiated credit agreement marked through by White was so incorporated. This was not a futile 
15

act, as the negotiated credit application provided MWC and MCW Industries with information to 

determine NWR’s credit worthiness.

8

Because NWR did not assent to the forum-selection clause in the credit application and 

because the original agreement portion of the credit application was not incorporated into the 

subcontracts via the addendums, we conclude that NWR did not consent to personal jurisdiction 

in Texas.

B. NWR Was not Subject to Specific Jurisdiction in Texas

MWC and MCW Industries’ First Amended Original Petition includes the following 

jurisdictional allegations:

9

 

Defendant, NWR Georgia Construction, LLC (“Shaw”), engages or has engaged 

in business in this state, but does not maintain a regular place of business or a 

designated agent for service of process. This lawsuit arises out of business done 

in this state and to which said Defendant is a party. Therefore, under Section 

17.044 of the Texas Civil Practice and Remedies Code,[10] substituted service on 

Defendant should be made by serving the Secretary of State of Texas . . . . 

. . . . 

8

The first page of the credit application indicated that trade references and banking references were attached. The

evidence indicates that the actual documents attached to the credit application included NWR’s credit resume as 

well as a letter from PNC Real Estate Banking confirming that the loan for the Scott Crossing Project had closed and 

was available to be drawn on.

9

We recite only those allegations that do not rely on the forum-selection clause in the credit application.

10Section 17.044(b) the Texas Civil Practice and Remedies Code states:

The secretary of state is an agent for service of process on a nonresident who engages in business 

in this state, but does not maintain a regular place of business in this state or a designated agent for 

service of process, in any proceeding that arises out of the business done in this state and to which 

the nonresident is a party.

TEX. CIV. PRAC. & REM. CODE ANN. § 17.044(b).
16

. . . . Venue in Harrison County is proper in this cause because the parties have 

agreed in writing that venue is proper here and only here, or, in the alternative, all 

or a substantial part of the events giving rise to the claim occurred in Harrison 

County.

[11]

. . . . 

. . . . The Defendant applied for credit in Harrison County, Texas[,] and the 

Plaintiffs agreed to extend credit to the Defendant. . . . The Defendant entered into 

contracts with MWCC to buy cabinets on credit and with MCW for cabinet 

installation . . . .

“A nonresident defendant’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 continuous and systematic contacts with the forum, general jurisdiction 

is established whether or not the defendant’s alleged liability arises from those contacts.” Id.

(citing BMC Software, 83 S.W.3d at 796). 

Conversely, “specific jurisdiction ‘may be asserted when the defendant’s forum contacts 

are isolated or sporadic, but the plaintiff’s cause of action arises out of those contacts with the 

state.’” Spir Star AG v. Kmich, 310 S.W.3d 868, 873 (Tex. 2010) (quoting 4 CHARLES ALAN 

WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1067.5 (3d ed. 2002)). “In 

such cases, ‘we focus on the “relationship among the defendant, the forum[,] and the 

litigation.”’” Id. (alteration in original) (quoting Moki Mac, 221 S.W.3d at 575–76). “Specific 

jurisdiction is appropriate when (1) the defendant’s contacts with the forum state are purposeful, 

and (2) the cause of action arises from or relates to the defendant’s contacts.” Id. (citing 

Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009)). “For a 

11Although we read these venue allegations broadly, MWC and MCW Industries do not allege, nor have they ever 

alleged, that NWR is subject to general jurisdiction in Texas.
17

Texas forum to properly exercise specific jurisdiction in this case, (1) [NWR] must have made 

minimum contacts with Texas by purposefully availing itself of the privilege of conducting 

activities here, and (2) [NWR’s] liability must have arisen from or [be] related to those contacts.”

Moki Mac, 221 S.W.3d at 576. 

In determining whether a nonresident defendant purposefully availed itself of the 

privilege of doing business in Texas, we consider “only the defendant’s contacts with the forum 

. . . , not the unilateral activity of another party or third person.” Moki Mac, 221 S.W.3d at 575. 

We likewise consider whether the contacts relied on are “purposeful rather than random, 

fortuitous, or attenuated.” Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 

339 (Tex. 2009). “Finally, the defendant must seek some benefit, advantage or profit by availing 

itself of the jurisdiction.” Id. “The purpose of a minimum contacts analysis is to protect a 

nonresident defendant from being haled into court when its relationship with the forum state is 

too attenuated to support jurisdiction.” Internet Advertising Grp., Inc. v. Accudata, Inc, 301 

S.W.3d 383, 388 (Tex. App.—Dallas 2009, no pet.) (citing Am. Type Culture Collection, Inc. v. 

Coleman, 83 S.W.3d 801, 806 (Tex. 2002)). Our examination of these factors leads us to 

conclude that NWR did not purposefully avail itself of the privilege of conducting activities in 

Texas.

It is undisputed that NWR is a Georgia company with its principal place of business in 

North Carolina. It is also undisputed that NWR 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 a 
18

registered agent for service in Texas.12 MWC and MCW Industries do not contend that NWR’s 

forum contacts give rise to general jurisdiction in Texas. Instead, the parties join issue on 

whether NWR is subject to specific jurisdiction in Texas.

NWR entered into subcontracts with MWC and MCW Industries, both of which are 

Texas companies. The subcontract with MWC provided that MWC would build cabinets for 

NWR while the subcontract with MCW Industries provided that MCW Industries would install 

the cabinets after they had been constructed. Contrary to the allegations of MWC and MCW

Industries, though, the cabinets were not constructed on credit, as the credit application had been 

expressly rejected. 

While it is true that NWR contracted with Texas companies MWC and MCW Industries, 

we observe “that an individual’s contract with an out-of-state party alone [cannot] automatically 

establish sufficient minimum contacts in the other party’s home forum.” Burger King Corp. v. 

Rudzewicz, 471 U.S. 462, 478 (1985). To evaluate purposeful availment in the context of a 

contract, we look to such factors as “prior negotiations and contemplated future consequences, 

along with the terms of the contract and the parties’ actual course of dealing.” Id. at 479. 

It is apparent from the record that prior negotiations took place regarding the credit 

application, as previously explained. Those negotiations led to the execution of the subcontracts 

12In his unsworn declaration, Michael Wilson, the vice president and general counsel of NWR, stated:

NWR is a limited liability company that is incorporated in Georgia and maintains its principal 

place of business in Charlotte, North Carolina. NWR does not conduct any business in Texas, 

does not own or lease personal or real property located in Texas, does not advertise in Texas, does 

not maintain a personal or business office, place of business or other facilities or residences in 

Texas, does not maintain a telephone listing or mailing address in Texas, does not maintain any 

officers, directors, or employees in Texas, and no owners of NWR live in Texas. NWR has never

applied for or received a loan of money in Texas and does not maintain bank accounts in Texas, 

and does not owe or pay taxes in Texas.
19

in the absence of agreement on the forum-selection clause in the credit application. From those

negotiations, we observe that, because NWR determined not to agree to the forum-selection

language in the credit application, it did not wish to be haled into a Texas Court. See Siskind v. 

Villa Found. for Educ., Inc., 642 S.W.2d 434, 437 (Tex. 1982). More importantly, though, is the 

fact that both subcontracts included identical arbitration provisions and choice of law provisions. 

The arbitration provision in each subcontract provided, in pertinent part:

Any claim or dispute between the Subcontractor and the Contractor shall, at the 

sole option of the Contractor be determined in accordance with any disputes 

procedure set forth in the Contract Documents, or at the sole option of Contractor, 

by litigation or binding arbitration in accordance with the American Arbitration

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. Mediation of any claim or dispute shall be conducted prior to

litigation or arbitration. At the sole option of Contractor, any such mediation 

shall also be conducted in accordance with the Mediation Rules of the AAA then 

in effect; provided, however, that the mediation itself may be conducted by a 

mediator agreed to by the Contractor and Subcontractor without the need to use 

the AAA. Such mediation shall be conducted within thirty (30) days of a request 

by contractor. . . . No claim, dispute, mediation, arbitration or litigation, shall 

interfere with the progress of the Work, and Subcontractor shall proceed with the 

Work despite the existence of any claim, dispute, mediation, arbitration or 

litigation. . . . The location of any mediation or arbitration proceeding shall be, at 

Contractor’s sole discretion, the Project location or in Charlotte, North Carolina.

(Emphasis added). Each subcontract also provided that “[t]he validity, interpretation and 

performance of its Subcontract shall be in accordance with the laws of the State of Georgia.”

“[C]hoice-of-law provisions should not be ignored in considering whether a defendant 

has ‘purposefully invoked the benefits and protections of a State’s laws.’” Michiana Easy Livin’ 

Country, Inc. v. Holton, 168 S.W.3d 777, 792 (Tex. 2005) (quoting Burger King, 471 U.S. at

482). NWR’s deletion of the forum-selection clause in the credit application is some evidence 
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that it did not anticipate local jurisdiction, and its “insertion of a clause designating a foreign 

forum suggests that no local availment was intended.” Id. at 792; see J.A. Riggs Tractor 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 was “not availing itself of the benefit of

Texas’ laws”); see also EnerQuest Oil & Gas, L.L.C. v. Antero Resources Corp., No. 02-18-

00178-CV, 2019 WL 1583921, at *6 (Tex. App.—Fort Worth Apr. 11, 2019, pet. dism’d) (mem. 

op.) (agreement containing Oklahoma forum-selection clause and Delaware choice-of-law clause 

suggest that EnerQuest “purposefully avoided” Texas). We, therefore, conclude that the 

inclusion of a Georgia choice-of-law provision and Georgia (project location) or Charlotte, North 

Carolina, forum-selection clause in each of the subcontracts indicates that NWR did not attempt 

to avail itself of the benefits of Texas’ laws. 

Although each of the subcontracts required MWC and MCW Industries to make 

application for monthly progress payments to NWR in Charlotte, North Carolina (email, 

overnight, or hand delivery), the subcontracts did not provide for a place of payment. “When a 

contract requires the payment of money but does not specify where the payment is to be made, 

the place of payment is the domicile of the payor.” Accudata, Inc., 301 S.W.3d at 389 (citing 

Buffet Partners, L.P. v. Sheffield Square, L.L.C., 256 S.W.3d 920, 922 (Tex. App.—Dallas 2008, 

no pet.)). 

Finally, there is no evidence in the record of where the subcontracts were performed. 

Even assuming MWC constructed the cabinets in Texas (to be installed on location in Georgia 

by MCW Industries), that fact is not outcome determinative. Rather, the “minimum-contacts 
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analysis focuses solely on the actions and reasonable expectations of the defendant.” Turner

Schilling, L.L.P. v. Gaunce Mgmt., Inc., 247 S.W.3d 447, 456 (Tex. App.—Dallas 2008, no pet.) 

(quoting Michiana, 168 S.W.3d at 790) (concluding that other party’s performance of contractual 

duties in Texas does not constitute purposeful contact by defendant in Texas); see also Moncrief 

Oil Int’l v. OAO Gazprom, 481 F.3d 309, 312 (5th Cir. 2007) (contracting with resident of forum 

state, combined with contract performance by resident party in forum state, did not establish 

minimum contacts when non-resident defendant did not perform any of its own contractual 

obligations in forum state, contract did not require performance there, and purpose of contract 

centered in Russia). Here, the contract did not require performance in Texas, and the purpose of 

the contract was centered in Georgia. 

Based on the foregoing analysis, we conclude that MWC and MCW Industries have not 

shown that NWR purposefully availed itself of the privilege of conducting activities within 

Texas and is thus not subject to specific jurisdiction here. See Michiana, 168 S.W.3d at 784–

85.13 

13As a result of our analysis, we need not determine whether MWC and MCW Industries’ causes of action arise

from contacts within this state.
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III. Conclusion

Because NWR did not consent to personal jurisdiction in Texas and because it is not 

subject to specific jurisdiction here, we reverse the trial court’s order and remand for further 

proceedings.

Josh R. Morriss, III

Chief Justice

Date Submitted: December 30, 2021

Date Decided: March 1, 2022