
                                          NO. 07-09-0213-CV

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL A

                                            AUGUST 31, 2010






                                  WEST TEXAS HOSPITALITY, INC. D/B/A
                                    ENERSERV CONSULTANTS, APPELLANT


                                                  v.


                                     ENERCON INTERNATIONAL, INC.
                                      AND PAUL SAXTON, APPELLEES





                            FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

                          NO. 2008-545,369; HONORABLE WILLIAM SOWDER, JUDGE






Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                          MEMORANDUM OPINION



      Appellant, West Texas Hospitality, Inc.  d/b/a  WTH  Consultants  ("WTH"),  appeals  the  trial
court's order issued in favor of Appellee, Enercon International, Inc. and Paul Saxton  (collectively
"Enercon") dismissing WTH's suit based upon a forum selection clause in a written  contract.    In  a
single issue, WTH asserts the trial court erred in its finding that there was an enforceable  written
contract between the parties.  We reverse and remand for further  proceedings  consistent  with  this
opinion.

                                              Background

      In February 2008, WTH[1] filed its Original Petition alleging Enercon[2]   wrongfully  retained
monies paid by WTH in anticipation of execution of a written  contractual  agreement.   WTH  asserted
actions for conversion, collection, and quantum meruit/unjust enrichment.   In  its  Amended  Special
Appearance, Motion to Dismiss, and Original Answer filed in January 2009, Enercon sought  to  dismiss
WTH's suit based upon a forum-selection clause contained in a written agreement  which  required  any
suit to be filed in Minnehaha County, South Dakota.  WTH responded by contending that  there  was  no
written agreement because Enercon never signed  the  proposed  contract  as  presented  by  WTH.   In
support of their  respective  arguments,  the  parties  submitted  evidence  through  affidavits  and
exhibits attached to their pleadings.


      In January 2008, WTH approached Enercon asking for a  proposed  contract  to  review.   Enercon
offered its "Authorized Affiliate  Agreement"  ("Agreement").   Among  other  things,  the  Agreement
provided that WTH would pay $43,900 to Enercon[3] in return for the right to  sell  Enercon  products
throughout the United States on a non-exclusive basis in addition  to  receiving  training,  customer
support, a demonstration kit, startup quantities of Enercon's promotional materials  and  a  "product
credit" up to $45,000.  WTH's "product credit" would be used  on  materials  and  services  purchased
from Enercon for projects approved by  Enercon  within  120  days  of  completion  of  WTH's  initial
training.  The Agreement also provided, in pertinent part, as follows:

      14.  CHANGES TO AGREEMENT:  This agreement may not be changed except by written consent of  all
      parties and may not be changed orally.

      16.  ACCEPTANCE OF CONTRACT AND EXECUTION DATE:  [WTH] shall sign duplicate  originals  of  the
      Agreement and submit both originals with full payment to [Enercon].   Should  [Enercon]  reject
      the Agreement, [WTH] will be notified of such  fact  in  writing  and  full  payment  shall  be
      returned promptly.  Should [Enercon] accept the agreement, [Enercon] will  date  and  sign  the
      duplicate originals of the agreement submitted and return one of the fully  executed  originals
      for [WTH] at [WTH's] address shown above.  The Agreement shall be binding upon all parties  the
      date [Enercon] dates and signs the duplicate originals, which shall be the "execution  date  of
      the Agreement."  [WTH] shall have a right of rescission for three days from  the  date  of  the
      agreement.

      18.  SOLE AGREEMENT:  There are no other  agreements  or  understandings,  either  oral  or  in
      writing between the parties effecting this agreement or relating to the sale of the Product(s),
      except as otherwise specifically provided herein . . . .  This agreement contains all the  oral
      written agreements, representations  and  arrangements  between  the  parties  hereto.   It  is
      understood between the parties that there are no representations or warranties made or  implied
      except as specifically set forth herein.

      21.  SUIT VENUE:  This agreement is performable in Minnehaha County, South Dakota.  Any  claim,
      cause of action, or other legal suit arising from, or as a result of this  agreement  shall  be
      brought in State Court in Minnehaha County, South Dakota . . . .

      24.  EXECUTION KNOWING AND VOLUNTARY:  The parties hereby acknowledge and represent  that  they
      (a) have fully and carefully read this agreement prior to execution; (b) have been, or have had
      the opportunity to be fully apprised by any attorneys of their choice of the legal effects  and
      meaning of this document and all terms and conditions hereof, . .  .  (d)  are  executing  this
      agreement with full knowledge of the ramifications thereof.

      30.  SUPERCEDE:  This contract supercedes and  replaces  any  previous  contract  or  agreement
      between the parties herein.





      The Agreement also contained two  signature  blocks,  one  each  for  Enercon  and  WTH.   Each
signature block was prefaced by the statement  "Accepted  by  [Enercon]"  and  "Accepted  by  [WTH],"
respectively.

      Kirit Desai, on behalf of WTH, made a number of handwritten changes to the  proposed  contract.
Specifically, he extended the time within which Enercon was required to apply WTH's "product  credit"
from 120 days to 150 days of completion of WTH's initial training.  He also amended  the  Agreement's
terms regarding termination as follows:  "This agreement may  also  be  terminated  by  circumstances
beyond [Enercon's] control that make  it  impossible  or  impractical  for  the  business  activities
contemplated by this agreement to be  continued,  in  which  case  the  remaining  balance  from  the
payments made will be refunded if termination happens within 150 days from the  payment."   (Emphasis
supplied on handwritten  changes).   In  addition,  Desai  amended  a  number  of  the  time-specific
provisions in the termination paragraph to make ten day time limits, ten  business  days.   (Emphasis
supplied on handwritten changes).


      On March 3, 2008, Desai signed  the  modified  contract  and,  on  March  4,  wired  his  first
installment of $26,000.  The following day, Enercon received the modified contract signed by WTH  and
invoiced WTH for $43,900.[4]  Prior to making their second installment payment,  WTH  ordered  $5,000
worth of Enercon products.  Enercon responded by invoicing WTH for "HiBrite  Fixtures,  Lamps,  Retro
Kit and freight, $5002.75," and stamped the invoice "PAID."

      On April 7, Desai sent an internal e-mail to another WTH officer, and  expressed  concern  that
they had "not received a signed copy of [their] agreement with Enercon."  Desai  wanted  to  start  a
countdown of the number of days remaining to recover their $43,900 from Enercon,  i.e.,  "[h]ow  much
time we have left and how much sales we have to generate within that time."


      On April 7, Enercon and WTH exchanged a number of e-mails related to  the  deadline  for  WTH's
"product credit."  Paul Saxton sent an e-mail to Desai indicating that  WTH's  "product  credit"  was
good for 120 days from completion of WTH's initial training.  In response, Desai  indicated  that  he
had altered the Agreement as tendered by Enercon to permit WTH  150  days  on  the  "product  credit"
deadline.  Desai also indicated that his  calculations  indicated  the  "product  credit"  would  not
expire until August 18 and asked Saxton to verify there was a  $42,000  "product  credit"  remaining.
Saxton responded to Desai saying:  "Did I sign that?  I don't recall . . .  I  don't  know  why  this
would have been changed as we already increased it to 120 days from the usual 90 days."

      On May 6, WTH made a second  installment  payment  to  Enercon,  deducting  $5,002.75  for  the
products purchased in March.  WTH also requested Enercon's services to design  projects  and  Enercon
invoiced WTH for their services.[5]

      In August, WTH had yet to receive an executed copy of the Agreement as  amended  by  Desai  and
the deadline was approaching for WTH's use of its "product credit."  On August 4, Desai  sent  an  e-
mail to Saxton indicating that the "product  credit"  deadline  was  approaching  and  asked  for  an
extension to complete a project and close on others.  Saxton responded he had checked  the  Agreement
and the "product credit" deadline of 120 days had already expired.   Desai  responded  by  sending  a
copy of his amendments to the Agreement and asserted that the "product credit" deadline of  150  days
had not expired.  Desai's calculations indicated that WTH had until August 18 to  use  the  remaining
credit of $42,000.[6]

      On August 25, Desai received a letter from Enercon's attorney stating, in  pertinent  part,  as
follows:

      I am writing with regard to invoices/purchase orders you  recently  sent  to  our  client.   My
      client is unable to fill the orders as submitted on your desired terms for three reasons.

      First, as my client noted in prior correspondence, the invoices/purchase orders  you  submitted
      were submitted outside of the 120-day-product-credit window set forth in the Enercon  Affiliate
      Agreement as it was offered to you.  The unauthorized alterations you  made  to  the  Agreement
      that you signed were not effective to extend this period.

      Second, as noted in the Affiliation Agreement, your  product  credit  must  be  used  "only  on
      complete Enercon approved, engineered, and designed products."  The document you have submitted
      are for products and quantities vastly different from those approved by my client.

      Third, your orders involve at least one entity that my client has never heard of and  therefore
      could not have possibly approved.

      My client therefore cannot provide these materials as currently requested on  a  product-credit
      basis.


      Following submission of the parties' pleadings and exhibits, the trial  court  heard  counsel's
argument in a short hearing on Enercon's motion to dismiss.  Enercon acknowledged  that  it  did  not
sign the Agreement but asserted WTH was bound by its terms because  WTH  had  signed.   Although  the
Agreement signed by WTH contained Desai's  changes,  Enercon  contended  WTH  performed  under  their
Agreement without the changes made by  Desai.   WTH  contended  the  contract  signed  by  Desai  and
returned to Enercon was a counter-offer that  was  not  accepted  because  it  was  never  signed  by
Enercon.  WTH asserted that, because the counter-offer was not executed  by  Enercon,  there  was  no
written agreement between the two companies and the forum selection clause was unenforceable.

      Thereafter, the trial  court  entered  its  order  denying  Enercon's  Special  Appearance  and
granting Enercon's motion to dismiss stating "[t]his dismissal is  based  upon  the  forum  selection
clause contained in the Authorized Affiliate Agreement between the parties."  This  appeal  followed.


      Standard of Review

      A motion to dismiss is the proper procedural mechanism for enforcing a  forum-selection  clause
against a party to the contract who violated the clause in filing suit.  Ramsay v. Tex. Trading  Co.,
254 S.W.3d 620, 626 (Tex.App.--Texarkana 2008, pet. denied).   While  we  review  the  trial  court's
ruling on a motion to dismiss for abuse of discretion; see In re Lyon Fin. Servs.,  257  S.W.3d  228,
231-32 (Tex. 2008) (per curiam),  to  the  extent  that  our  review  involves  the  construction  or
interpretation of an unambiguous contract, the standard  of  review  is  de  novo.   Phoenix  Network
Techs. (Europe) Ltd. v. Neon Sys., Inc., 177 S.W.3d 605, 610 (Tex.App.--Houston [1st Dist.] 2005,  no
pet.).  This is so because "a trial court has no 'discretion' in  determining  what  the  law  is  or
applying the law to the facts"; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992),  and  "abuses  its
discretion" if it misinterprets or misapplies the law.  Perry Homes v.  Cull,  258  S.W.3d  580,  598
(Tex. 2008).

      Forum-selection Clause

      The trial court's order does not contain a specific finding  of  the  existence  of  a  written
agreement, nor did the trial court make findings of fact and conclusions of  law.   However,  as  the
parties' briefs make clear, the  trial  court's  order  of  dismissal  clearly  rests  on  the  legal
conclusion that WTH is bound to the forum-selection clause in the Agreement on which Enercon  relies.


      As the party seeking to enforce a contractual forum-selection clause, Enercon had  the  initial
burden of establishing that it and WTH agreed to an exclusive forum  and  the  agreement  applied  to
WTH's claims.  Phoenix Network, 177 S.W.3d at 611-12 & n.6.  See Barnett v. Network Solutions,  Inc.,
38 S.W.3d 200, 203 (Tex.App.--Eastland 2001, pet. denied).[7]  If Enercon  met  these  prerequisites,
the burden would then shift to WTH to make a "strong showing" overcoming the prima facie validity  of
the forum-selection clause.  Phoenix Network, 177 S.W.3d at 611.

      To establish the existence of an enforceable contract, a party must prove  (1)  an  offer,  (2)
acceptance of the offer, (3) mutual assent or "meeting of the minds"  regarding  the  subject  matter
and essential terms of the contract,  and  (4)  consideration,  or  mutuality  of  obligations.   See
Domingo v. Mitchell, 257 S.W.3d 34,  39  (Tex.App.--Amarillo  2008,  pet.  denied).   In  determining
whether the parties have formed a contract  through  offer,  acceptance  and  mutual  assent  to  the
contract terms, we rely on the objective standard of what the parties said and how  they  acted,  not
on their subjective state of mind.  Id.; Texas Disposal Sys. Landfill, Inc. v. Waste Mgmt.  Holdings,
Inc., 219 S.W.3d 563,  589  (Tex.App.-Austin  2007,  pet.  denied).   Moreover,  as  with  any  other
contract, "the parties' intent is governed by what they said, not by what they intended  to  say  but
did not."  Feiss v. State Farm Lloyds, 202 S.W.3d 744, 746 (Tex. 2006) (emphasis in original).

      Enercon's initial offer, the Agreement, expressly states WTH must accept by signing  "duplicate
originals of the Agreement."  (Emphasis added).  Thereafter, Enercon would accept  by  "dat[ing]  and
sign[ing] the duplicate originals of the agreement submitted and return one  of  the  fully  executed
originals for [WTH] at [WTH's] address shown above."  The Agreement then would "be binding  upon  all
parties the date [Enercon] dates  and  signs  the  duplicate  originals,  which  date  shall  be  the
'execution date of Agreement.'"  As such, the Agreement  would  be  the  parties'  "sole  agreement,"
embodying "all representations or warranties  made  or  implied  except  as  specifically  set  forth
[therein]."  Any changes to its terms were required to be "by written consent of all parties."

      The unambiguous language of the Agreement, then, required that Enercon sign, date, and  deliver
a duplicate original to WTH before it became an enforceable contract binding on  either  party.   "If
an instrument, even though signed, is delivered with the understanding that it is not to  be  binding
as a contract until signed by another, the failure  of  the  other  person  to  sign  the  instrument
destroys the very existence of the contract."  Baccus v. Plains Cotton Cooperative  Association,  515
S.W.2d 401, 402-03 (Tex.App.--Amarillo 1974, no writ) (citing Thomason v. Berry, 276 S.W.  185  (Tex.
Comm'n App. 1925, judgmt. adopted)).[8]  Because Enercon failed to offer any evidence that it  signed
and delivered[9] the Agreement to WTH in the manner required, Enercon failed in  its  initial  burden
of proving the parties mutually assented to the Agreement or  the  forum-selection  clause  contained
therein.

      Furthermore, although WTH signed the Agreement, Desai did so only  after  altering  its  terms.
See Paragraph 16 of the Agreement ("Affiliate shall sign duplicate originals of the Agreement").   As
such, Enercon also failed to offer any evidence  WTH  ever  accepted  Enercon's  original  offer--the
Agreement.[10]

      Enercon asserts that WTH's  orders  for  goods  and  services  constituted  acceptance  of  the
original Agreement.  However, while  the  invoices,  themselves,  could  be  evidence  of  individual
contracts in their own right; see A.F. Knight v. Virginia Mirror  Co.,  463  S.W.2d  428,  429  (Tex.
1971); F.H. Berry v. Pierce Petroleum Corp., 120 Tex. 452, 39 S.W.2d 824,  825-26  (1931),  they  may
not act as a substitute for acceptance  under  the  Agreement  because  the  subject  matter  of  the
Agreement does not permit acceptance by any other means including  performance.   Neither  was  there
any evidence of any change to the method of acceptance by "written consent of all  parties."[11]   To
the contrary, in his letter to WTH, Enercon's attorney relies on the terms of the original  Agreement
offered to WTH while describing Desai's handwritten terms as "unauthorized alterations."

      While Enercon correctly points out  that  "it  is  not  necessary  in  order  to  constitute  a
'contract in writing' that the agreement be signed by both parties; one may sign and  the  other  may
accept by his acts, conduct or acquiescence in the terms of the agreement";  see Pierce  v.  Pickett,
432 S.W.2d 586, 589 (Tex.Civ.App.--Amarillo 1968, no writ), this rule does not apply here  where  "at
least one of the parties has sufficiently  expressed  his  intention  not  to  be  bound  without  [a
signature]," and "the parties have made [signatures] necessary at the time they express their  assent
and as a condition modifying that assent."  Simmons, 286 S.W.2d at 418 (quoting Corbin on  Contracts,
Vol. 1, §§ 31 and 32, pp. 85 and 92).  Here, in the absence of the written consent of the parties  to
a different mode of acceptance, Enercon and WTH were expressly  required  to  sign  and  deliver  the
Agreement to each  other  before  there  was  an  enforceable  contract.   Id.  at  418-19.[12]   See
Birchminster, 517 S.W.2d at 612.

      WTH's response to Enercon's motion to dismiss and  arguments  made  by  WTH's  counsel  at  the
hearing belie Enercon's assertion that WTH waived its argument on appeal  that  Enercon's  signatures
were required before the Agreement would be enforceable.  This issue was argued  in  WTH's  pleadings
and at the hearing.[13]  The trial court's order stated that it considered  the  evidence,  pleadings
and argument of counsel.  As a result, we conclude the issue was not waived.  See  Tex.  R.  App.  P.
33.1(a).  See also Piazza v. City of Granger, 909 S.W.2d 529, 532 (Tex.App.--Austin  1995,  no  writ)
(issue whether statutory notice was defective not waived where counsel argued notice was invalid  and
copy of notice was attached to pleading); FDIC v. Attayi,  745  S.W.2d  939,  942  (Tex.App.--Houston
[1st Dist.] 1988, no writ) (issue whether guarantee agreement specifically provided for  renewal  not
waived where counsel argued debt in  issue  had  been  renewed  and  copy  of  guaranty  attached  to
pleading).[14]  Likewise, here, WTH argued the  issue  and  incorporated  an  attached  copy  of  the
Agreement into its response.

      Because Enercon failed in  its  initial  burden  of  establishing  that  the  parties  mutually
assented to the Agreement or its forum-selection clause, WTH's sole issue is sustained.

                                              Conclusion

      We reverse the judgment of the trial court and remand for further proceedings consistent with
this opinion.


                                        Patrick A. Pirtle
                                              Justice








-----------------------
[1]WTH is a  Texas  corporation  doing  business  in  Lubbock  County,  Texas.   Kirit  Desai,  WTH's
President, resides in Lubbock County.

[2]Enercon is a South Dakota corporation with its principal place of business in Sioux  Falls,  South
Dakota.  Paul Saxton, Enercon's President, resides in Ohio.

[3]Enercon's proposed Agreement required that WTH pay Enercon two installments equaling $43,900.

[4]The invoice stated "$43,900 for 1 HiBrite Dealership - HiBrite dealership NON  EXCLUSIVE,  Out-of-
state sale, exempt from sales tax."

[5]These invoices were as follows:  (1) dated August 27 and stamped  PAID,  $400  for  1  Survey  Fee
United Supermarket Out-of-state sale, exempt from sales tax; (2) dated August 28  and  stamped  PAID,
$400 for Sonic Drive-In survey, Out-of-state, exempt from sales tax; (3) dated  May  21  and  stamped
PAID, $400, 1 Survey Fee, Shamrock Chevrolet Survey, Out-of-state, exempt from  sales  tax;  and  (4)
dated May 21 and stamped PAID, $400, 1 Survey Fee, Survey Fee Gene Messer, Out-of-state, exempt  from
sales tax.

[6]The record also contains two e-mails between Desai  and  Nelsi  Rodriquez,  an  Enercon  employee.
Desai sent Rodriquez an e-mail stating: "I am sorry I should have called you to let you know  that  I
found my copy [of the Agreement] on my computer.  Thanks for your help."   Rodriquez  responded:   "I
take that you no longer need the affiliate agreement, you found it?"

[7]See also Reuben Lowing v. Williams, No. 07-03-0393-CV, 2005 Tex. App. LEXIS 62, at *5  (Tex.App.--
Amarillo 2005, no pet.) (not designated for publication).

[8]"Evidence of mutual assent in written contracts generally consists of signatures  of  the  parties
and delivery with the intent to bind."  Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635  (Tex.  2007)
(collected cases cited therein).  Parties  may  provide  that  the  signature  of  each  party  is  a
prerequisite to a binding written contract; In re Bunzl,  155  S.W.3d  202,  209  (Tex.App.--El  Paso
2004, no pet.) (citing Corbin on Contracts §  2.10  at  165  (Joseph  M.  Perillo  rev.  1993),  and,
"[w]here parties to a written contract intend that it shall not be binding until it is signed by  the
parties, the signatures of both parties are required to give effect to the  contract."   Birchminster
Resources v. Corpus Christi Management Co., 517 S.W.2d 608, 611 (Tex.App.--Corpus Christi 1974,  writ
dism'd) (citing Simmons & Simmons Constr. Co. v. Rea, 155 Tex. 353, 286 S.W.2d 415, 418-19 (1955).

[9]Where there is no delivery of the contract, there is no mutual assent  and,  hence,  no  contract.
Baylor Univ., 221 S.W.3d at 635.  "If the  reduction  of  the  agreement  to  writing  is  thus  made
necessary, an assent to the writing as a sufficient one must also be manifested;  this  manifestation
commonly consists of signing and delivery."  Simmons, 286 S.W.2d at 418.  See Baccus, 515  S.W.2d  at
402.  "An acceptance which resides solely within the exclusive  knowledge  of  the  acceptor  without
being communicated to the offeror is ordinarily no binding acceptance."  Advantage Physical  Therapy,
Inc. v. Cruse, 165  S.W.3d  21,  26  (Tex.App.--Houston  [14th  Dist.]  2005,  no  pet.).   See  Tex.
Association of Counties County Government Risk Management Pool v. Matagorda County,  52  S.W.3d  128,
132 (Tex. 2000); Peden Industries v. Dahlstrom Corp., 520 S.W.2d 876, 877  (Tex.App.--Beaumont  1975,
no writ).

[10]"It is an established rule of contracts that when a specific mode of acceptance is  given  within
an offer, the offeree must convey his acceptance in the precise mode expressed within  the  offer  in
order to create a binding agreement."  Abraham Investment Company v. Payne Ranch,  Inc.,  968  S.W.2d
518, 525 (Tex.App.--Amarillo 1998, pet. denied).  See Advantage Physical Therapy, Inc.,v. Cruse,  165
S.W.3d 21, 25 (Tex.App.--Houston [14th Dist.] 2005, no pet.); Morrow v. De Vitt, 160 S.W.2d 977,  983
(Tex.Civ.App.--Amarillo 1942, writ ref'd w.o.m.).  "The acceptance must be identical with the  offer;
otherwise there is no binding contract;" Domingo v. Mitchell, 257 S.W.3d 34,  39  (Tex.App.--Amarillo
2008, pet. denied); Gilbert d/b/a Consulting Economists v. Pettiette, 838 S.W.2d 890, 893 (Tex.App.--
Houston [1st Dist.] 1992, no writ), and "any attempt to change an offer operates as a  rejection  and
counteroffer."  Komet v. Graves, 40 S.W.3d 596, 601 (Tex.App.--San Antonio 2001, no pet.); Harris  v.
Balderas, 27 S.W.3d 71, 77 (Tex.App.--San Antonio 2000,  pet.  denied).   See  United  Concrete  Pipe
Corp. v. Spin-Line Co., 430 S.W.2d 360, 364 (Tex. 1968) ("It is well settled that an acceptance  must
not change or qualify the terms of the offer.  If it does, the offer is rejected.")

[11]Neither can the e-mails between Desai and Rodriquez constitute any acceptance even if they  could
be interpreted as Enercon suggests which is doubtful.   Further,  the  Agreement  expressly  provided
that it contained "all oral written agreements, representations and arrangements between the  parties
hereto."

[12]Neither Bocchi Americas Associates, Inc. v. Commerce Fresh Marketing  Inc.,  515  F.3d  383  (5th
Cir. 2008) nor McCarty v. C.H. Langdeau, 337 S.W.2d 407 (Tex.App.--Austin 1960, writ  ref'd  n.r.e.),
are of any avail to Enercon.  Neither court was required to determine whether acceptance occurred  in
conformity with an express  contractual  provision  requiring  the  parties'  signatures  before  the
contract was enforceable.  See 515 F.3d at 391-92; 337 S.W.2d at 412.

[13]In WTH's response to Enercon's motion to  dismiss,  WTH  asserted  "[Enercon]  never  signed  the
[agreement] and never assented to the terms of the  [agreement]  either  verbally  or  by  course  of
conduct. . . .  Plaintiff and Defendant have never  entered  into  a  written  contract."   WTH  also
incorporated by  reference  into  their  response  Desai's  affidavit  and  the  Agreement  including
paragraph "16.  ACCEPTANCE OF CONTRACT AND EXECUTION DATE" as well as WTH's internal e-mails  wherein
the only method of acceptance discussed was by signature and  execution  of  the  Agreement  by  both
parties.  At the hearing, WTH's counsel asserted "[t]here is no contract . .  .  no  meeting  of  the
minds. . . .  He never signed it; the guy never signed it. . . .  If there is no contract,  then  the
Forum Selection Clause is poof."

[14]Neither does Century 21 Real Estate Corp. v. Hometown  Real  Estate  Co.,  890  S.W.2d  118,  124
(Tex.App.--Texarkana 1994, writ denied) nor Wohlfahrt v. Holloway, 172 S.W.3d  630,  640  (Tex.App.--
Houston [14th Dist.] 2005, no pet.), cert. denied, 549 U.S. 1052, 127  S.Ct.  666,  166  L.Ed.2d  514
(2006) require a different result as Enercon suggests.  In Century 21, the  appellate  court  refused
to allow International to assert on appeal that Hometown  was  a  "consumer"  under  the  DTPA  when,
before the trial court, International had asserted only that International was a seller of goods  and
services to Hometown.  In Wolhlfahrt, the appellate court refused to permit Wohlfahrt  to  assert  on
appeal the court was bound to set post-judgment rates under  a  statutory  provision  different  than
that argued before the trial court.  172 S.W.2d at 639-40.





