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Western Technologies, Inc. v. Omnivations II, L.L.C.

Court of Appeals of Texas, Eighth District, El Paso

April 5, 2019

WESTERN TECHNOLOGIES, INC., An Arizona Corporation, Appellant,
v.
OMNIVATIONS II, L.L.C., A Texas Limited Liability Company, Appellee.

          Appeal from the 448th District Court of El Paso County, Texas (TC# 2017DCV2600)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          YVONNE T. RODRIGUEZ, JUSTICE

         Western Technologies, Inc. (WTI) appeals the trial court's denial of its special appearance requesting dismissal for lack of personal jurisdiction. We will affirm.

         BACKGROUND

         WTI is an Arizona corporation headquartered in Phoenix that provides clients with engineering and consulting services. WTI states that its service area encompasses only the states of Arizona, Nevada, Utah, Colorado, and New Mexico, and the company asserts that it has no business activity, operations, presence, personnel, or registered agents located in Texas.

         In January 2015, WTI and Omnivations II, L.L.C., (OMNI) entered into a contract under which OMNI would provide WTI with GPS tracking services for WTI's vehicle fleet (the Service Contract). The Service Contract stated that the parties' agreement would be governed by Arizona law and that disputes arising under the contract must be brought "in a court of competent jurisdiction in Maricopa County, Arizona." The Service Contract also stated that the contract's terms "may not be varied, modified, or changed except by written agreement of both parties executed by a corporate officer of each party." The Service Contract was signed in Phoenix, and lasted for a period of one year, but would continue on a month-to-month basis unless there was a written termination notice. At the time the Service Contract was signed, OMNI was an Arizona-based company. However, OMNI later moved its operations to El Paso, Texas. OMNI invoices showed that OMNI charged WTI for tracking WTI vehicles in Phoenix; Tucson, Arizona; Las Vegas, Nevada; Salt Lake City, Utah; Albuquerque, New Mexico; and Farmington, New Mexico. OMNI's invoicing operations occurred from El Paso.

         In March 2016, WTI representative John Lyon, OMNI manager John Warren, and others participated in a telephone conference call. During the call, Lyons asked if OMNI could provide custom software development services for WTI. What happened thereafter is a matter of dispute. According to OMNI, Lyon and Warren verbally agreed that OMNI would provide software development at a seventy-five percent discounted rate ($2, 500 as opposed to $10, 000) in exchange for WTI entering into a two-year subscription for continued GPS tracking services.

         Following these discussions, in June 2016, OMNI circulated a document entitled Subscription and Services Agreement (the Draft Subscriber Agreement). The Draft Subscriber Agreement's terms and conditions contained a choice-of-law and forum selection clause providing that the Agreement would be governed by and construed in accordance with Texas law, that the parties agreed to submit to the jurisdiction of the State of Texas, and that any and all disputes arising from or in connection to the agreement would be brought in the state or federal courts of El Paso County, Texas. Section 1.2 of the agreement dealing with methods of acceptance provided, in relevant part:

Placement of a purchase order by the Customer, whether in writing, on the internet, or by e-mail shall mean acceptance of these Terms that are deemed incorporated in any purchase order and shall form the contract between the parties. Digital signature by Customer shall be proof of agreement.

         There is no signed version of the Draft Subscriber Agreement appearing in the record.

         An invoice in the record indicates that on July 6, 2016, WTI paid $2, 500 for development services. On July 28, 2016, Lyons requested an addendum to the agreement. On August 1, Warren sent Lyons an email confirming that OMNI would provide an addendum with the following terms: (1) a description of the development work; (2) the cost of the development ($2, 500); and (3) the pricing per unit at the rate of $19.95.

         In May 2017, WTI stopped paying for OMNI's services. On June 2, 2017, WTI requested that OMNI terminate its services.

         Procedural ...


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