Concord Energy, LLC v. VR-4 Grizzly, LP ( 2022 )

REVERSED and RENDERED and Opinion Filed November 22, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01126-CV
CONCORD ENERGY, LLC, Appellant
V.
VR4-GRIZZLY, LP, Appellee
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-10333
MEMORANDUM OPINION
Before Chief Justice Burns,1 Justice Nowell, and Justice Smith
Opinion by Justice Smith
Appellant Concord Energy, LLC appeals the trial court’s denial of its special
appearance challenging the trial court’s personal jurisdiction over Concord.2
Because we conclude that appellee VR4-Grizzly, LP’s claims against Concord do
not arise from or relate to Concord’s contacts with Texas and, therefore, the trial
1
The Honorable Leslie Osborne participated in the submission of this case; however, she did not
participate in issuance of this memorandum opinion due to her resignation on October 24, 2022. The
Honorable Robert Burns has substituted for Justice Osborne in this cause. See TEX. R. APP. P. 41.1(b)(1).
Chief Justice Burns has reviewed the briefs and the record before the Court.
2
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7) (permitting an appeal from an interlocutory
order that grants or denies a special appearance under TEX. R. CIV. P. 120a, which allows a defendant to
specially appear and object to the court’s personal jurisdiction over the defendant).
court did not have personal jurisdiction over Concord, we reverse and render
judgment dismissing VR4’s claims against Concord.
Personal Jurisdiction
Whether a trial court has personal jurisdiction over a nonresident defendant is
a question of law that appellate courts review de novo. Old Republic Nat’l Title Ins.
Co. v. Bell, 549 S.W.3d 550, 558 (Tex. 2018). Often, however, a trial court must
resolve questions of fact before deciding the question of jurisdiction. BMC Software
Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). When a trial court does
not issue findings of fact and conclusions of law in conjunction with its special
appearance ruling such as in the case here,3 all facts necessary to support the
judgment that are supported by the evidence are implied. Id. at 795. These implied
findings may be challenged for legal and factual sufficiency when the appellate
record includes the reporter’s and clerk’s records. Id. If the relevant facts are
undisputed, the appellate court need not consider any implied findings of fact and
considers only the legal question of whether the undisputed facts establish personal
jurisdiction. Old Republic, 549 S.W.3d at 558.
Texas courts may assert personal jurisdiction over a nonresident defendant if
(1) the Texas long-arm statute authorizes the exercise of jurisdiction and (2) the
3
Although appellants filed a request for findings of fact and conclusions of law, the record does not
contain a notice of past due findings or reflect that the trial court made findings of fact and conclusions of
law.
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exercise of jurisdiction is consistent with federal and state constitutional due process
guarantees. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.
2007). The Texas long-arm statute is satisfied when a nonresident defendant does
business in Texas such as when the nonresident defendant “contracts by mail or
otherwise with a Texas resident and either party is to perform the contract in whole
or in part” in Texas. TEX. CIV. PRAC. & REM. CODE ANN. § 17.042(1); Moki Mac,
221 S.W.3d at 574. The exercise of personal jurisdiction over such nonresident
defendant is constitutional when (1) the nonresident defendant has established
minimum contacts with the forum state and (2) the exercise of jurisdiction comports
with traditional notions of fair play and substantial justice. BMC Software, 83
S.W.3d at 795.
A nonresident defendant’s contacts with the forum state can give rise to
general or specific jurisdiction. Luciano v. SprayFoamPolymers.com, LLC, 625
S.W.3d 1, 8 (Tex. 2021). General jurisdiction is established when the defendant has
continuous and systematic contacts with the forum, rendering it essentially at home
in the forum state, regardless of whether the defendant’s alleged liability arises from
those contacts. TV Azteca v. Ruiz, 490 S.W.3d 29, 37 (Tex. 2016). Specific
jurisdiction is established when the nonresident defendant’s alleged liability arises
from or is related to the defendant’s activity conducted within the forum state. BMC
Software, 83 S.W.3d at 796.
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The plaintiff bears the initial burden to plead sufficient allegations to bring a
nonresident defendant within the provisions of the Texas long-arm statute. Kelly v.
Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010). Once the plaintiff has
met the initial burden of pleading sufficient jurisdictional allegations, the defendant
bears the burden to negate all bases of personal jurisdiction alleged by the plaintiff.
Id. “Because the plaintiff defines the scope and nature of the lawsuit, the defendant’s
corresponding burden to negate jurisdiction is tied to the allegations in the plaintiff’s
pleading.” Id. If the defendant presents evidence in its special appearance
disproving the plaintiff’s jurisdictional allegations, the burden shifts back to the
plaintiff to establish the court has personal jurisdiction. Id. at 659. The plaintiff
should amend the petition if it lacks sufficient allegations to bring the defendant
under the long-arm statute or if, in the special appearance response, the plaintiff
presents evidence that supports a different basis for jurisdiction. Id. at 659, 659 n.6.
Raising jurisdictional allegations for the first time in a response to the special
appearance is not sufficient. Steward Health Care Sys. LLC v. Saidara, 633 S.W.3d
120, 128–29 (Tex. App.—Dallas 2021, no pet.) (en banc); see also Kelly, 301
S.W.3d at 658 n.4 (“additional evidence merely supports or undermines the
allegations in the pleadings”).
Issues Raised
Concord argues that the trial court erred in denying its special appearance
because (a) VR4 did not allege specific grounds for personal jurisdiction prior to the
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special appearance hearing; (b) to the extent VR4 did sufficiently allege jurisdiction,
Concord negated VR4’s alleged grounds for personal jurisdiction; (c) the trial court
should not have considered VR4’s conclusory declaration, parol evidence, VR4’s
post-hearing petition, and post-hearing amended declaration when determining
whether it had personal jurisdiction; and (d) even when considering VR4’s efforts to
reframe its claims, the evidence still negated jurisdiction.
Jurisdictional Allegations4
VR4 alleged in its original petition that Concord was a foreign limited liability
company existing under the laws of Colorado with its principal place of business in
Colorado. VR4 further alleged that Concord was authorized to do business in Texas
and could be served through its agent of process in Dallas, Texas. VR4 is a Texas
limited partnership doing business in Dallas.
VR4 claimed it purchased a producing interest in a number of gas wells in
Oklahoma and Texas from Grizzly Operating, LLC. According to VR4, Concord
was VR4’s gas marketer from the time it purchased its interest in early 2021 until
March 2021, when it ended its relationship with Concord. Concord had also
previously been the gas marketer for Grizzly, which was formerly Vanguard
Operating, LLC.
4
The underlying facts and procedural history are well-known to the parties; therefore, we limit our
discussion of the record to those facts necessary to resolve Concord’s appeal. See TEX. R. APP. P. 47.1.
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The crux of VR4’s suit against Concord is that it failed to pay money owed to
VR4 for gas delivered from VR4’s Oklahoma wells to Concord5 in February 2021,
during the severe winter storm that caused a spike in the price of gas. The
discrepancy for the amount owed under the marketing agreement was due to the
third-party gatherer’s failure to change its measurement system to individually
account for the amount of gas produced by VR4’s wells and the amount produced
by another company’s wells in the same Oklahoma field. Previously, Grizzly owned
the producing interest in these wells and, thus, the gatherer attributed all gas
produced to Grizzly. Since the sale of Grizzly’s interest, the gatherer had not yet
changed its system to reflect that some wells were now owned by VR4 and some
were owned by the other company. A significant volume of the other company’s
gas production was knocked offline during the winter storm; VR4’s wells remained
fully operational and covered the nominations allocated to both companies. VR4
claimed that, in an attempt to resolve the dispute, the parties agreed via email to
reallocate the proceeds between VR4 and the other owner, thus agreeing that
Concord would pay VR4 more. VR4 claimed that Concord failed to pay it
$488,321.51 of the agreed upon amount.
When Concord allegedly failed to pay VR4 market price for the gas it actually
delivered from its Oklahoma wells, VR4 brought causes of action for breach of
5
VR4’s Oklahoma wells fed gas into a receipt point in Oklahoma, owned by the gatherer. The gas was
then transported to a processing plant in Oklahoma, processed, and delivered to Concord via pipeline.
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contract, money had and received, and quantum meruit. The Base Contract for Sale
and Purchase of Natural Gas attached to VR4’s original petition, and referred to in
its petition as the marketing agreement, provides Colorado as the choice of law. It
is undated and unsigned.
In its special appearance, Concord asserted it was not domiciled in Texas and
VR4 failed to plead facts to bring Concord within the reach of the Texas long-arm
statute. Concord attached a signed copy of the Base Contract that VR4 referenced
in its original petition, which was dated January 25, 2021. Concord asserted that the
contract was not intended to be performed, nor was it performed, in whole or in part,
in Texas. Concord further asserted that VR4 made no allegation that Concord
committed any act in Texas leading to any of the claims pleaded. It contended that
the alleged actions occurred outside of Texas, if at all. Concord thus argued that any
jurisdictional allegations were legally insufficient to establish that the trial court had
personal jurisdiction over Concord.
VR4 responded and filed a first amended petition before the hearing. VR4’s
first amended petition added the following facts:
Pursuant to the assignment from Grizzly to Plaintiff, Plaintiff acquired
Grizzly’s rights under the “Base Contract for Sale and Purchase of
Natural Gas” (the “Marketing Agreement”), between Grizzly and
Concord, a true and correct copy of which is attached hereto as “Exhibit
A.” In this role, Concord found buyers for gas produced from Grizzly’s
wells in Texas, Oklahoma, and elsewhere, purchased Grizzly’s gas in
Texas, Oklahoma, and elsewhere, and immediately resold it to buyers
in Texas, Oklahoma, and elsewhere for a markup. When Plaintiff
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acquired Grizzly’s wells in Oklahoma and later, Texas, Concord did the
same for Plaintiff.
The Base Contract attached to VR4’s first amended petition was between VR4’s
predecessor, Vanguard, and Concord, and contained a Texas choice of law
provision. It was dated September 29, 2016. VR4 did not allude to why it was now,
in its amended petition, relying on the 2016 contract between Concord and Vanguard
as the governing agreement when VR4 and Concord had signed a new Base Contract
in January 2021, which VR4 had attached to its original petition.
At the special appearance hearing, the trial court noted its concern with VR4’s
lack of jurisdictional allegations in its pleadings: “One of the first things I noticed is
that you guys made no allegations in your petition with regard to jurisdiction and
venue. What I was looking for in that amended petition was exactly that, which you
still haven’t addressed. Why haven’t you addressed that in your petitions?” VR4’s
counsel responded that he believed the jurisdictional allegations were covered by the
fact section of the petition but that VR4 would be happy to amend if the court
believed it was necessary. Concord’s counsel argued that it apprised VR4 of the
jurisdictional defects in its pleading by raising such issues in the special appearance.
Concord further argued that, although VR4 amended its petition, it failed to address
the jurisdictional deficiencies and, thus, Concord urged the trial court to grant its
special appearance based on VR4’s failure to meet its initial pleading burden.
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After the hearing but before the trial court denied Concord’s special
appearance, VR4 filed a second amended petition. VR4 alleged that Concord
entered into a contract with VR4’s predecessor, a Texas company, which was to be
performed, in part, in Texas and that Concord maintained continuous and systematic
contacts with Texas by sending repeated gas nomination agreements to VR4 in
Texas and by buying and selling gas in Texas. Concord responded that the trial court
should not consider VR4’s second amended petition or amended declaration and
moved to strike. The trial court did not rule on Concord’s motion to strike.
On appeal, Concord argues that VR4 did not allege specific grounds for
personal jurisdiction prior to the special appearance hearing. Specifically, Concord
asserts that VR4’s original and first amended petition contained no jurisdictional
allegations except that Concord was authorized to do business in Texas, that any
allegations made by VR4 in its special appearance response did not cure its pleading
deficiencies, and that VR4’s second amended petition cannot be considered because
it was filed four days after the special appearance hearing.
We agree that we cannot consider VR4’s second amended petition filed after
the special appearance hearing and, therefore, our review is limited to whether VR4
met its jurisdictional pleading burden in its first amended petition. See Rose
Trading, LLC v. Wei, No. 05-21-00232-CV, 2021 WL 5754810, at *2 (Tex. App.—
Dallas Dec. 3, 2021, pet. pending) (mem. op.) (“An amended petition filed without
leave after a special appearance hearing is untimely, and it may not be considered
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when ruling on the special appearance.”); Guam Indus. Servs., Inc. v. Dresser-Rand
Co., 514 S.W.3d 828, 837 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (“It is well
settled that in reviewing a ruling on a special appearance, we may review only those
pleadings on file at the time of the special appearance hearing and may not consider
pleadings that were filed after the hearing.”).
VR4 argues that it met its burden in its first amended petition. It contends that
the fact section “clearly alleges various jurisdictional facts regarding Concord’s
activities in and contacts with Texas in connection with the parties’ contractual
relationship.” Although pleading jurisdictional allegations in a “Jurisdiction”
section would be the preferred practice and likely provide more clarity in a plaintiff’s
basis for jurisdiction, we agree that the allegations can be contained anywhere in the
petition, including the fact section. See Saidara, 633 S.W.3d at 129–31. We further
agree with VR4 that its first amended petition contains facts that bring Concord
under the Texas long-arm statute. Specifically that Concord contracted with VR4,
or entered into an agreement with VR4 by assignment, and that the agreement was
to be performed in Texas in that Concord would find buyers for gas produced from
VR4’s wells in Texas and Oklahoma, purchase VR4’s gas in Texas and Oklahoma,
and immediately resell it to buyers in Texas and Oklahoma for a markup. Thus,
VR4 met its initial pleading burden by alleging Concord contracted with VR4 and
performed part of the contract in Texas. See Moki Mac, 221 S.W.3d at 574 (Texas
long-arm statute is satisfied when nonresident defendant “contracts by mail or
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otherwise with a Texas resident and either party is to perform the contract in whole
or in part” in Texas) (quoting CIV. PRAC. & REM. § 17.042(1))). Therefore, we turn
to whether Concord negated VR4’s jurisdictional allegations.
Concord Negated VR4’s Jurisdictional Allegations
In addition to Concord’s argument that VR4 failed to plead any jurisdictional
facts to satisfy Texas’s long-arm statute, Concord also argued that the trial court did
not have specific jurisdiction because VR4’s claims did not arise from or relate to
Concord’s purposeful activities in Texas. Concord denied that the 2016 contract
governed and focused instead on the 2021 contract. According to Concord, although
it did market gas produced in Texas, the claims asserted by VR4 arose from gas
produced by wells in Oklahoma, not Texas.
Concord attached an affidavit from Samuel Rasure, Concord’s Vice President
of Producer Services, in which he testified that the gas at issue was produced,
processed, and sold to Concord in Oklahoma. Concord performed the marketing
agreement remotely from its headquarters in Denver, Colorado, and no one from
Concord traveled to Texas in connection with VR4’s Oklahoma wells. The only
times Concord’s performance under the January 25, 2021 contract touched Texas
was when Concord exchanged emails with VR4 or sent electronic payments to
VR4’s bank in Texas. Concord did not provide marketing services for VR4’s Texas-
based wells until April 1, 2021.
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We conclude that Concord successfully negated VR4’s jurisdictional
allegations by showing that at the time of the alleged breach it did not market gas in
Texas for VR4 or from any Texas wells owned by VR4 and that VR4’s claims
against it concerned activities that occurred in Oklahoma or Colorado, not Texas.
Minimum Contacts with Texas
We now turn to whether VR4 carried its burden in response to Concord’s
special appearance, other pleadings, affidavits, and evidence presented at the hearing
to establish that the trial court did have specific jurisdiction over Concord as pleaded.
See TEX. R. CIV. P. 120a(3) (“The court shall determine the special appearance on
the basis of the pleadings, any stipulations made by and between the parties, such
affidavits and attachments as may be filed by the parties, the results of discovery
processes, and any oral testimony.”).
VR4 argued at the hearing that Concord admitted to minimum contacts. We
disagree. At the hearing, Concord’s counsel stated, “In this case we admit that we
fall within the long-arm statute. The -- one of the standards itemized in the long-
arm statute is contracting with [a] Texas resident. We have contracted with VR4 so
we admit to that.” Concord counsel then denied that exercising jurisdiction would
comport with federal due process.
Falling under the long-arm statute is step one. Step two is determining
whether the exercise of jurisdiction is consistent with federal and state constitutional
due process guarantees, which itself is broken into two questions: (1) whether the
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nonresident defendant has established minimum contacts with the forum state, and
(2) whether the exercise of jurisdiction comports with traditional notions of fair play
and substantial justice. Moki Mac, 221 S.W.3d at 574; BMC Software, 83 S.W.3d
at 795.
On appeal, VR4 summarizes its argument as follows:
Because Concord has admitted that it is subject to Texas’ long
arm statute in this case and does not argue the issue of fair play and
substantial justice, the Court’s jurisdictional analysis hinges on the
minimum contacts test. Concord’s minimum contacts with Texas are
readily apparent: it entered into and performed services under a long
term contract with a Texas gas producer, governed by Texas law, to
purchase gas in Texas and sell it to buyers in Texas, which required
frequent communications with that Texas company and procuring and
delivering gas within Texas.
The problem with VR4’s argument, both on appeal and in the trial court, is that it is
lacking a critical component of the minimum contacts analysis: whether the claims
alleged arise from or relate to Concord’s contacts with Texas.
To exercise specific jurisdiction over a nonresident defendant, the defendant’s
contacts with the forum state must be purposeful and the cause of action must arise
from or relate to those contacts. Moki Mac, 221 S.W.3d at 575–76. We therefore
focus on the relationship among the forum, the defendant, and the litigation. Id. To
determine whether a defendant’s contacts are purposeful, the court should consider
only the defendant’s contacts with the forum state, not the unilateral activity of a
third party. Id. at 575. The contacts cannot be random, fortuitous, or attenuated, and
the defendant must seek some benefit, advantage, or profit by availing himself of the
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jurisdiction. Id. “A defendant establishes minimum contacts with a state when it
‘purposefully avails itself of the privilege of conducting activities within the forum
state, thus invoking the benefits and protections of its laws.’” Retamco Operating,
Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 (Tex. 2009) (quoting Hanson v.
Denckla, 357 U.S. 235, 253 (1958)). “The defendant’s activities, whether they
consist of direct acts within Texas or conduct outside Texas, must justify a
conclusion that the defendant could reasonably anticipate being called into a Texas
court.” Id. (quoting Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801,
806 (Tex. 2002)).
For a cause of action to arise from or relate to the nonresident defendant’s
contacts, there must be a substantial connection between those contacts and the
operative facts of the litigation. Moki Mac, 221 S.W.3d at 585. Plaintiff’s claim
does not have to arise “but for” the defendant’s contacts, and the defendant’s
contacts are not required to be the “proximate cause” of liability. TV Azteca, 490
S.W.3d 53. “Instead, we consider what the claim is ‘principally concerned with,’
Moncrief Oil [Int’l Inc. v. OAO Gazprom], 414 S.W.3d [142,] 157 [Tex. 2013],
whether the contacts will be the ‘focus of the trial’ and ‘consume most if not all of
the litigation’s attention,’ and whether the contacts are ‘related to the operative facts’
of the claim, Moki Mac, 221 S.W.3d at 585.” Id. “[I]f the actionable conduct occurs
in Texas, we have never required that the lawsuit also arise directly from the
nonresident defendant’s additional conduct.” Luciano, 625 S.W.3d at 18. “The
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relevance of the additional conduct . . . is not to establish that those contacts
constitute [defendant’s] minimum contacts with Texas, but to establish that the
actionable conduct in Texas itself constitutes minimum contacts” by showing that
the defendant purposefully availed itself of Texas. TV Azteca, 490 S.W.3d at 54.
We must analyze jurisdictional contacts on a claim-by-claim basis, unless all
claims arise from the same forum contacts. Moncrief Oil, 414 S.W.3d at 150. Here,
VR4’s claims against Concord for breach of contract, money had and received, and
quantum meruit arise from Concord’s marketing agreement with VR4 concerning
VR4’s Oklahoma wells. Thus, all claims arise from the same contacts and operative
facts.
The parties dispute which contract controls: the 2021 contract between VR4
and Concord or the 2016 contract between Vanguard and Concord. VR4 argues that
the 2016 contract controls because it is the marketing agreement that VR4 acquired
in the assignment from Grizzly, formerly Vanguard, and that VR4 never intended to
enter into a new contract in 2021. David Swain, who was personally involved in
VR4’s acquisition of Grizzly’s Oklahoma wells in January 2021, stated the
following in his declaration:
It was my understanding that VR4-Grizzly was stepping into Grizzly
Operating’s shoes in its agreements with Concord and its other
agreements, therefore I did not see these [2021] documents as
necessary, nor did I believe they overrode the existing Transaction
Confirmation and Base Contract for the Sale and Purchase of Natural
Gas between Grizzly Operating and Concord. There was no negotiation
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between Concord and VR4-Grizzly to arrive at a new agreement, and it
was my understanding that the terms did not change.
Concord argues that the new contract controls because both parties signed it
after the assignment and it contains an integration clause thereby merging any prior
agreements, such as the 2016 agreement, into the successor 2021 agreement. Each
party believes determining which contract controls is critical to the personal
jurisdiction analysis. We disagree such a determination is in our scope of review.
VR4’s live pleading alleges that Concord breached the 2016 agreement and a 2021
email agreement; it no longer alleges Concord breached the 2021 marketing
agreement. Whether the 2016 agreement controls, i.e. whether it is a valid and
enforceable agreement between Concord and VR4, is a question regarding the merits
of VR4’s breach of contract claims against Concord. See Hoagland v. Butcher, 474
S.W.3d 802, 814, 814 n.10 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (op. on
remand). At this juncture, we must accept the plaintiff’s allegations as true. Id. at
814–15.
Regardless of whether the 2016 agreement controls, the operative facts of
VR4’s claims involve the amount of gas produced by its Oklahoma wells, the
amount measured by the gatherer in Oklahoma, and the amount due to VR4 as a
result of the increase in market price and the other owner’s wells being knocked
offline in Oklahoma. VR4 maintains that it does not matter where the breach
occurred because the breach is of a 2016 agreement that also governed Concord’s
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marketing of gas in Texas and, thus, Texas has jurisdiction over a breach of the
agreement. But, under the assignment, VR4 acquired the marketing agreement as it
related to the Oklahoma wells in which it purchased a producing interest, not all the
other wells Grizzly owned across the nation. VR4 did not acquire the Texas wells
and Concord did not begin marketing gas from VR4’s Texas wells until April 2021,
after the alleged breach.
VR4 relies on Calyx Energy III, LLC v. Enerfin Resources I LP to support its
proposition that the trial court had personal jurisdiction over Concord even though
the breach was regarding gas produced from wells in Oklahoma. See No. 14-19-
00790-CV, 2021 WL 330195 (Tex. App.—Houston [14th Dist.] Feb. 2, 2021, no
pet.) (mem. op.). Calyx is distinguishable for several reasons: (1) the “pre-existing,
long-term business relationship” was between the parties in Calyx, whereas here the
long-term relationship is between Concord and the previous owner of the wells, not
Concord and VR4; (2) Concord did not approach VR4 about entering into an
agreement but, instead, became VR4’s marketer due to the assignment of some of
Grizzly’s Oklahoma wells to VR4; (3) Concord did not have an agent in Texas that
managed its contract with VR4; (4) Concord did not have an officer in Texas that
coordinated the management of its contract with VR4; and (5) the agreement
between VR4 and Concord was not largely performed in Texas. 2021 WL 330195,
at *1–2, 5–6. Therefore, Calyx does not support VR4’s argument.
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The existence of the Texas choice of law provision in the 2016 agreement also
does not establish that VR4’s claims arise out of or relate to Concord’s business
activities in Texas. See Citrin Holdings, LLC v. Minnis, 305 S.W.3d 269, 282 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (explaining that a choice of law provision
is not dispositive of whether a defendant has purposefully availed itself of one state’s
law; it “is merely one factor to consider in determining whether a forum state has
personal jurisdiction over a nonresident defendant”). The choice of law provision
provides that the agreement shall be governed by the laws of Texas; it does not
provide that performance of the contract is in Texas, and it is not a consent to
jurisdiction in Texas like a forum selection clause. See In re AutoNation, Inc., 228
S.W.3d 663, 668–70 (Tex. 2007).
In sum, the operative facts of VR4’s claims against Concord do not concern
Concord’s contacts with Texas; they concern Concord’s contacts with Oklahoma.
Therefore, the trial court erred by concluding it had personal jurisdiction over
Concord and by denying its special appearance.6
VR4’s Request to Remand for Further Discovery
6
To the extent we have not addressed some of Concord’s sub-arguments regarding whether the trial
court erred in considering certain evidence when ruling on Concord’s special appearance, it is unnecessary
for us to resolve those arguments because we have concluded that, even considering all evidence and
arguments filed before or presented at the special appearance hearing, the trial court erred in denying
Concord’s challenge to personal jurisdiction. See TEX. R. APP. P. 47.1.
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VR4 urges this Court, if we reverse the trial court’s judgment, to remand with
instructions for the trial court to allow VR4 to file a motion to compel the discovery
that Concord refused to provide. VR4 argues that Concord objected to and refused
to answer questions about the genesis of the 2016 Base Contract, whether it sold gas
in Texas, whether its employees traveled to Texas, and whether the contract was
negotiated in Texas, among other things. VR4 says it chose not to waste its and the
trial court’s time and resources litigating motions to compel at this early stage given
Concord’s undisputed contacts with Texas already in evidence. We reject VR4’s
invitation to remand for further discovery. It is the plaintiff’s burden to establish
that the trial court has personal jurisdiction over the defendant. Kelly, 301 S.W.3d
at 659. If VR4 believed further discovery was necessary to meet its burden, it should
have pursued options to obtain such discovery before the trial court heard Concord’s
special appearance motion.
Conclusion
We reverse the November 30, 2021 order of the trial court denying Concord’s
special appearance and render judgment granting Concord’s special appearance and
dismissing VR4’s claims against it.
/Craig Smith/
CRAIG SMITH
221126F.P05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CONCORD ENERGY, LLC, On Appeal from the 193rd Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-21-10333.
No. 05-21-01126-CV V. Opinion delivered by Justice Smith.
Chief Justice Burns and Justice
VR4-GRIZZLY, LP, Appellee Nowell participating.
In accordance with this Court’s opinion of this date, the order of the trial court
denying appellant Concord Energy, LLC’s special appearance is REVERSED and
judgment is RENDERED granting Concord Energy, LLC’s special appearance and
dismissing VR4-Grizzly, LP’s claims against Concord Energy, LLC.
It is ORDERED that appellant CONCORD ENERGY, LLC recover its costs
of this appeal from appellee VR4-GRIZZLY, LP.
Judgment entered this 22nd day of November 2022.
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