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Click here for the full text of this decision FACTS:in this interlocutory appeal, Southern Stucco Inc., contends the trial court erred in denying its special appearance challenging the trial court’s specific and general jurisdiction. CG Multifamily-New Orleans LP contracted with Greystar Development and Construction to build an apartment complex on property CG Multifamily owned in New Orleans. Greystar is a Delaware limited partnership doing business in Texas, and its principal place of business is Houston. Greystar contracted with various subcontractors, including Southern, which is a Louisiana corporation with its principal place of business in Baton Rouge. In April 2001, problems arose with the construction including cracking in the stucco. Subsequently, CG Multifamily sued Greystar, Southern and other parties alleging, among other defects, that water had “infiltrated through the exterior stucco” and caused property damage. CG Multifamily alleged a cause of action for negligence against Southern. CG Multifamily alleged that nonresident defendants were subject to the court’s jurisdiction because they “maintained sufficient contacts with Greystar in Texas throughout the construction process at issue in this suit.” Southern filed a special appearance asserting that the trial court did not have jurisdiction over it. Southern supported its special appearance with the affidavit of its president and sole stockholder, Wayne Noble. CG Multifamily responded and supported its response with Noble’s deposition and exhibits. An associate judge heard the special appearance and denied it. Southern appealed that decision to the district court, which heard the special appearance de novo, affirmed the associate judge’s ruling, and denied the special appearance. HOLDING:Affirmed. The record shows that Southern contracted with Greystar, a Texas resident; submitted pay applications to Greystar; sent invoices to Greystar and received payment from Greystar; participated in meetings and discussions with Greystar about the construction project and the stucco work by fax, mail and telephone; and issued a warranty to Greystar. The court concludes this evidence shows Southern purposefully availed itself of the privilege of conducting activities within Texas: Southern’s own contacts with Texas were purposeful, not random, isolated or fortuitous, and Southern sought a benefit, advantage or profit by availing itself of the jurisdiction. The court rejects Southern’s reliance on Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773 (5th Cir. 1986). The 5th U.S. Circuit Court of Appeals relied on the following facts conclude the exercise of specific jurisdiction was not proper: the choice-of-law provision in the agreement specified Oklahoma would govern the agreement; performance of the contract was centered in Oklahoma; the Oklahoma resident mailed payments to Texas; the exchange of communications between Texas and Oklahoma in carrying out the contract rested on nothing but the mere fortuity that Holt happens to be resident of the forum. Here, however, there is no choice-of-law provision. The court also rejects Southern’s arguments that minimum contacts were not established because the subcontract required no performance in Texas and the payment application procedure was not contained in the contract and was “merely incidental” to Southern’s performance in Louisiana. OPINION:Jim Moseley, J.; Moseley, Bridges and Lang-Miers, J.J.

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