Court of Appeals of Texas, Eighth District, El Paso
from the 448th District Court of El Paso County, Texas (TC#
McClure, C.J., Rodriguez, and Palafox, JJ.
T. RODRIGUEZ, JUSTICE
Technologies, Inc. (WTI) appeals the trial court's denial
of its special appearance requesting dismissal for lack of
personal jurisdiction. We will affirm.
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.
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.
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.
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
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.
is no signed version of the Draft Subscriber Agreement
appearing in the record.
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.
2017, WTI stopped paying for OMNI's services. On June 2,
2017, WTI requested that OMNI terminate its services.