NWR Ga. Constr., LLC v. Master Woodcraft Cabinetry, LLC
| Decision Date | 01 March 2022 |
| Docket Number | 06-21-00104-CV |
| Citation | 648 S.W.3d 541 |
| Parties | NWR GEORGIA CONSTRUCTION, LLC, Appellant v. MASTER WOODCRAFT CABINETRY, LLC, and MCW Industries, LLC, Appellees |
| Court | Texas Court of Appeals |
Ross A. Vitek, Melissa R. Smith, Marshall, Brian C. Brisco, Fort Worth, for Appellant.
Jim Ammerman II, Marshall, John R. Mercy, Texarkana, for Appellee.
Before Morriss, C.J., Stevens and Carter,* JJ.
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.
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," 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:
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:
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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:
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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."
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 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
Following a hearing, the trial court issued its order denying NWR's verified special appearance.
"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, 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...
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