                       COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH


                             NO. 2-08-100-CV


LUXURY TRAVEL SOURCE D/B/A                                    APPELLANTS
LTS LUXURY TOUR SOURCE, LTD.,
MUKESH GOYAL A/K/A MUKESH
KUMAR, MAIN ST. TRAVEL CENTER
OF MONSEY, INC., AND BEN WEBER

                                     V.

AMERICAN AIRLINES, INC.                                           APPELLEE

                                 ------------

        FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

                                 ------------

                                OPINION

                                 ------------

                              I. Introduction

     This is an appeal from the trial court’s denial of appellants’ special

appearances in the face of allegations that they improperly bought and sold

frequent flyer miles awarded by appellee to its customers. Appellants Luxury

Travel Source d/b/a LTS Luxury Tour Source, Ltd. (LTS), Mukesh Goyal a/k/a
Mukesh Kumar (LTS’s principal), and Main St. Travel Center of Monsey, Inc.

each raise a single issue challenging the trial court’s denial of their special

appearances, claiming that they negated all alleged bases of personal

jurisdiction.   Appellant Ben Weber, Main St.’s principal, brings two issues

challenging the denial of his special appearance: (1) the Texas long-arm statute

does not authorize jurisdiction over him and (2) he negated all alleged grounds

for personal jurisdiction. We affirm in part and reverse and render in part.

                                 II. Background

      Appellee American Airlines, Inc., a Delaware corporation with its

headquarters in Fort Worth, Texas, sued appellants (1) LTS, a British Columbia

corporation with its principal place of business in Vancouver; (2) LTS’s principal

Goyal; (3) Main St., a New York corporation with its principal place of business

in Rockland County, New York; and (4) Main St.’s principal Weber for tortious

interference with contracts and business relations, fraud, misappropriation,

breach of contract, and violation of the Texas tradem ark laws based on

appellants’ alleged brokering of frequent flyer miles (AAdvantage® travel

rewards) issued by American as an incentive to its customers who are

AAdvantage® members. All four appellants filed special appearances, which the

trial court denied and from which appellants now appeal.




                                        2
      In its third amended petition, American specifically alleged the following

as bases for asserting general and specific jurisdiction over appellants:

!     LTS

            acknowledges that it has customers in Texas, estimating that
      less than ten percent of its customers are Texas residents. LTS
      admits it purchases AAdvantage® miles and sells AAdvantage®
      award tickets to its customers, including Texas residents. LTS’
      business requires it to reach out to American in Texas. It
      admittedly uses the AA.com website, whose servers are hosted in
      Plano. It also admittedly calls American to make AAdvantage®
      award ticket reservations. Many award tickets involve first class
      travel in Texas.    Once an award ticket is issued for that
      reservation, LTS sells the ticket to their customers, including in
      Texas, who pay LTS for the ticket.

!     Goyal

             admittedly has four AAdvantage® accounts in four different
      names, of which one was obtained through the Internet. By
      signing up through AA.com, he entered into two contracts with
      American, as to the AAdvantage® program and as to AA.com.
      Under the latter’s forum-selection clause, Goyal agreed that any
      lawsuit against American related to use of the website must be
      brought in the courts of Tarrant County. Hundreds of thousands
      of miles from these accounts have been used to book award tickets
      for travel in Texas.

!     Main St.

           admits it is bound by the terms and conditions of the Airlines
      Reporting Corporation Agent Reporting Agreement . . . and the
      American . . . Addendum to the ARC Agreement . . ., pursuant to
      which Main St. agreed that disputes, such as this, arising out of
      the Addendum are to be submitted to the courts of the State of
      Texas.


                                       3
!     Weber

            admits as president of Main St. he reached out to American
      in Texas by telephone and email to do business with it, was dealing
      with American on a daily basis, and the financial benefits reaped by
      that business would benefit him personally in the long run.
      However, Weber failed to disclose to American that Main St. was
      defrauding the AAdvantage® program.”

                            III. Standard of Review

      Whether a trial court has personal jurisdiction over a defendant is a

question of law, which we review de novo. Moki Mac River Expeditions v.

Drugg, 221 S.W.3d 569, 574 (Tex. 2007); TravelJungle v. Am. Airlines, Inc.,

212 S.W.3d 841, 845 (Tex. App.—Fort Worth 2006, no pet.). The plaintiff

bears the initial burden of pleading sufficient allegations to bring a nonresident

defendant within the provisions of the long-arm statute.         Moki Mac, 221

S.W.3d at 574; TravelJungle, 212 S.W.3d at 845. Once the plaintiff does so,

the burden shifts to the nonresident defendant to negate all alleged jurisdictional

bases. Moki Mac, 221 S.W.3d at 574; TravelJungle, 212 S.W.3d at 845. We

review all of the evidence in making this determination. TravelJungle, 212

S.W.3d at 845.

      When, as here, a trial court does not issue findings of fact and

conclusions of law with its special appearance ruling, we infer all implied facts

necessary to support the judgment and supported by the evidence. Moki Mac,


                                        4
221 S.W.3d at 574; TravelJungle, 212 S.W.3d at 845. Because here the

appellate record includes both the reporter’s and clerk’s records, however,

these implied findings are not conclusive.       BMC Software Belg., N.V. v.

Marchand, 83 S.W .3d 789, 795 (Tex. 2002); TravelJungle, 212 S.W.3d at

845.    We may review the trial court’s resolution of disputed fact issues for

legal and factual sufficiency under the same standards of review that we apply

in reviewing a jury’s or trial court’s findings of fact at trial. TravelJungle, 212

S.W.3d at 845.

                            IV. Personal Jurisdiction

       A Texas court may assert personal jurisdiction over a nonresident

defendant only if the requirements of due process under the Fourteenth

Amendment and the Texas long-arm statute are satisfied. U.S. Const. amend.

XIV, § 1; Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041–.045 (Vernon 2008);

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413–14, 104

S. Ct. 1868, 1871–72 (1984); Moki Mac, 221 S.W.3d at 574.

A. Long-arm Statute

       The Texas long-arm statute governs Texas courts’ exercise of jurisdiction

over nonresident defendants.        Tex. Civ. Prac. & Rem. Code Ann. §§

17.041–.045; BMC Software, 83 S.W.3d at 795; TravelJungle, 212 S.W.3d

at 845.    That statute permits Texas courts to exercise jurisdiction over a

                                        5
nonresident defendant who “does business” in Texas. Tex. Civ. Prac. & Rem.

Code Ann. § 17.042; BMC Software, 83 S.W.3d at 795; TravelJungle, 212

S.W.3d at 845.     The statute lists some activities that constitute “doing

business” in Texas, including (1) contracting with a Texas resident by mail or

otherwise when either party is to perform the contract in whole or in part in

Texas, and (2) committing a tort, in whole or in part, in Texas. Tex. Civ. Prac.

& Rem. Code Ann. § 17.042; Moki Mac, 221 S.W.3d at 574; TravelJungle,

212 S.W.3d at 845. The list of activities set forth in section 17.042 is not

exclusive, however. BMC Software, 83 S.W.3d at 795; TravelJungle, 212

S.W.3d at 845.

      Even if a nonresident’s activities constitute “doing business” under

section 17.042’s broad language, Texas courts may exercise personal

jurisdiction over a nonresident defendant only “as far as the federal

constitutional requirements of due process will allow.” Moki Mac, 221 S.W.3d

at 575 (quoting Guardian Royal Exch. Assurance, Ltd. v. English China Clays,

P.L.C., 815 S.W.2d 223, 226 (Tex. 1991)); TravelJungle, 212 S.W.3d at 845.

Therefore, in determining whether a nonresident defendant has met its burden

to negate all bases of jurisdiction, we rely on precedent from the United States

Supreme Court and other federal courts, as well as our own state’s decisions.

BMC Software, 83 S.W.3d at 795; TravelJungle, 212 S.W.3d at 845–46.

                                       6
B.    Due Process

      Due process is satisfied when (1) the 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.    Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945); Moki Mac, 221

S.W.3d at 575; TravelJungle, 212 S.W.3d at 846. A nonresident defendant

who has “purposefully availed” itself of the privileges of conducting business

in a foreign jurisdiction, invoking the benefits and protections of its laws, has

sufficient minimum contacts with the forum to confer personal jurisdiction on

a court in that forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474–76,

105 S. Ct. 2174, 2183–84 (1985); Moki Mac, 221 S.W.3d at 575. Three

factors important in determining whether a defendant has purposefully availed

itself of the forum are (1) only the defendant’s contacts with the forum count;

(2) the acts relied on must be purposeful rather than merely fortuitous; and (3)

the defendant must seek some benefit, advantage, or profit by availing itself of

the forum. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785

(Tex. 2005); TravelJungle, 212 S.W.3d at 846; Karstetter v. Voss, 184

S.W.3d 396, 403 (Tex. App.—Dallas 2006, no pet.).

      Because of the unique and onerous burden placed on a party called upon

to defend a suit in a foreign legal system, the minimum contacts analysis is

                                       7
particularly important when the defendant is from a different country. Asahi

Metal Indus. Co. v. Super. Ct. of Cal., 480 U.S. 102, 114, 107 S. Ct. 1026,

1033 (1987); BMC Software, 83 S.W.3d at 795. A defendant should not be

subject to a foreign court’s jurisdiction based on random, fortuitous, or

attenuated contacts. Burger King, 471 U.S. at 475, 105 S. Ct. at 2183; BMC

Software, 83 S.W.3d at 795. Rather, individuals must have fair warning that

a particular activity may subject them to the jurisdiction of a foreign sovereign.

Burger King, 471 U.S. at 472, 105 S. Ct. at 2182; Guardian Royal, 815

S.W.2d at 226; TravelJungle, 212 S.W.3d at 846.

C.    General v. Specific Jurisdiction

      Personal jurisdiction exists if the nonresident defendant’s minimum

contacts give rise to either specific jurisdiction or general jurisdiction.

Helicopteros Nacionales de Colombia, 466 U.S. at 413–14, 104 S. Ct. at 1872;

BMC Software, 83 S.W.3d at 795; TravelJungle, 212 S.W.3d at 846. A trial

court has general jurisdiction over a nonresident defendant when that

defendant’s contacts in a forum are continuous and systematic so that the

forum may exercise personal jurisdiction over the defendant even if the cause

of action did not arise from or relate to activities conducted within the forum

state. Moki Mac, 221 S.W.3d at 575; TravelJungle, 212 S.W.3d at 846. In

contrast, specific jurisdiction is present if the nonresident defendant’s alleged

                                         8
liability arises from or is related to an activity conducted within the forum.

Moki Mac, 221 S.W.3d at 575; TravelJungle, 212 S.W.3d at 846–47. In other

words, “there must be a substantial connection between those contacts and

the operative facts of the litigation.” Moki Mac, 221 S.W.3d at 585. When a

plaintiff asserts that a trial court has specific jurisdiction over a nonresident

defendant, the minimum contacts analysis focuses on the relationship among

the defendant, the forum, and the litigation.      Moki Mac, 221 S.W.3d at

575–76; Guardian Royal, 815 S.W.2d at 227–28; TravelJungle, 212 S.W.3d

at 846–47.

      For a Texas trial court to have specific jurisdiction over a nonresident

defendant, it is not necessary that the nonresident defendant’s conduct actually

occur in Texas, as long as the defendant’s acts were purposefully directed

towards Texas. Calder v. Jones, 465 U.S. 783, 789–90, 104 S. Ct. 1482,

1487 (1984); CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996);

TravelJungle, 212 S.W.3d at 847. “[A] defendant should reasonably anticipate

being haled into court where the effects of its conduct have been intentionally

caused through the purposeful direction of activity toward the forum state,

even if the defendant never physically enters the state.” SITQ, E.U., Inc. v.

Reata Rests., Inc., 111 S.W.3d 638, 646 (Tex. App.—Fort Worth 2003, pet.




                                       9
denied) (quoting Cole v. The Tobacco Inst., 47 F. Supp. 2d 812, 815 (E.D. Tex.

1999)).

                                      V. LTS

      LTS admits that it “purchases and barters” AAdvantage® reward points.

It obtains customers via several of its websites that offer to purchase

AAdvantage® reward points or to sell travel on American. These websites

function as LTS’s sole means of advertising in Texas;1 it does not purchase

print advertising, phone lists, or mailing lists.2

      LTS obtains customers by allowing prospective customers to submit

information to LTS via a “Contact Us” link on one of the websites. No other

form of communication occurs via the websites.3          Once a potential LTS

customer sends its written contact information via the “Contact Us” link on a

website, a company representative contacts the potential customer at his or her

request by telephone or overnight courier. LTS estimates that approximately

less than ten percent of its worldwide customers are Texas residents. It admits


      1
          … These websites are accessible by internet users worldwide.
      2
       … LTS conducts all of its operations in British Columbia. It does not
have and has never had any physical presence in Texas. It does not maintain
an office, address, phone listing, or registered agent in Texas. It does not have
any agents, affiliated companies, bank accounts, or property in Texas.
      3
      … In the past, the websites displayed American’s business logo, as well
as other airlines’ logos.

                                         10
that some of its customers may have flown through DFW airport on tickets

booked as a result of its activities.

      American presented evidence that LTS buys AAdvantage® rewards points

from customers, some of whom live in Texas, and pays them by sending

checks; some of those checks are mailed to customers in Texas. LTS also

obtains AAdvantage® rewards points from accounts opened up and maintained

by its employees, including Goyal; it then sells those points to third parties.

Goyal admitted that in conducting its business, LTS sometimes accesses the

AAdvantage® rewards chart, and possibly American’s flight schedules, on

American’s website, AA.com; American presented evidence that the servers

that power AA.com are located in Plano, Texas.       LTS then calls American

reservations centers, one-third of which are in Texas, to make reservations for

a different customer using the AAdvantage® rewards points procured.4 After

it makes a reservation, LTS provides the reservation number to the customer

from whom it purchased the AAdvantage® rewards points and instructs that

customer to contact American to issue the ticket. American thus issues the

ticket in the name of the customer who is not an AAdvantage® member and




      4
          … All AAdvantage® rewards are processed in Texas by American.

                                        11
that customer pays LTS for the ticket.5 Some of the customers who purchase

tickets from LTS are Texas residents.

     American presented evidence that LTS directly contacted at least two

Texas residents by email6 and, for the purposes of obtaining the benefit of

those customers’ AAdvantage® rewards points, induced them to contact

American to issue tickets with those rewards points for existing reservations

that LTS had already made for the benefit of other customers. LTS then sent

checks to at least one of those customers in Texas.

     Thus, there is some evidence that LTS used its contacts with Texas

residents to deliberately induce activity in Texas by American, and LTS’s

customers, to LTS’s benefit. See SITQ, 111 S.W.3d at 653. Additionally, part

of LTS’s agreements with its Texas customers, at least as to sales of reward

points, were performable in Texas. See Gutierrez v. Cayman Islands Firm of

Deloitte & Touche, 100 S.W.3d 261, 271 (Tex. App.—San Antonio 2002, pet.




     5
       … When LTS obtains points from its employees’ accounts, an LTS
representative books the tickets for the third party customers.
     6
       … American also presented evidence that when a customer submits
information on LTS’s websites, he or she is asked to provide LTS with his or
her city, state, zip code, home phone number, and cell phone number. One of
the customers averred that she found out about LTS through one of its
websites, but another customer averred that he did not know how LTS got his
contact information.

                                        12
dism’d). These contacts between LTS and Texas are substantially connected

to the operative facts underlying the causes of action alleged by American: its

means of contacting Texas residents and the activities that it induced in Texas

are the crux of American’s complaint. Cf. Moki Mac, 221 S.W.3d at 584–85.

Accordingly, we conclude and hold that American showed sufficient minimum

contacts between LTS and Texas to satisfy the requirements of due process.

      LTS contends that this case is more akin to Michiana, in which a Texas

resident, unsolicited, contacted an Indiana company, which sold that resident

an RV that it manufactured in Indiana and then delivered to Texas. Michiana,

168 S.W.3d at 781, 784.       The supreme court determined that Michiana’s

contacts with Texas were too attenuated to support personal jurisdiction; it had

no contacts with Texas other than the fact that one customer happened to

place an order from here. Id. at 794.

      But LTS’s contacts here are not so attenuated that it could not have

foreseen suit in Texas. Although at least two Texas customers initiated contact

through an LTS website,7 LTS’s contacts went further than merely taking an


      7
      … Relying on Texas cases involving internet communications, LTS also
contends that it operated only a passive website and did not actively solicit
customers in Texas. See, e.g., Reiff v. Roy, 115 S.W.3d 700, 705–06 (Tex.
App.—Dallas 2003, pet. denied) (determining that company’s interactive
website did not constitute continuous and systematic contacts sufficient to
support general jurisdiction); Michel v. Rocket Eng’g Corp., 45 S.W.3d 658,

                                        13
order from a customer.       LTS deliberately induced its Texas customers to

undertake further activity in Texas, directed at a Texas business, in direct

contravention of an agreement between those residents and the Texas

business. See Burger King, 471 U.S. at 472–73, 105 S. Ct. 2182–83 (holding

that “fair warning” requirement of due process is satisfied when nonresident

defendant has purposefully directed activities at forum residents). Although

Goyal estimated that AAdvantage® rewards points were LTS’s fourth most

popular product, American presented evidence that LTS used millions of points

from Goyal’s accounts alone. And it is not difficult to foresee that a large

number of AAdvantage® members would be located in Texas, where American

is headquartered.     American has also sued, in this same action, Texas

corporations that it alleges are engaged in the same activity for profit. For

these reasons, we also conclude and hold that subjecting LTS to personal

jurisdiction comports with traditional notions of fair play and substantial justice.




677–78 (Tex. App. Fort Worth 2001, no pet.) (determining that company’s
passive website was not a “purposeful activity directed toward residents of
[Texas] to be considered in determining whether general jurisdiction exists”).
However, our analysis does not turn on any allegation that LTS actively
solicited customers in Texas or any allegation that its website was so
interactive that it might have established the requisite contacts. Accordingly,
we do not find these cases dispositive.

                                        14
See Jones v. Beech Aircraft Corp., 995 S.W.2d 767, 774 (Tex. App.—San

Antonio 1999, pet. dism’d w.o.j.).

      Accordingly, we conclude and hold that the trial court did not err by

determining that LTS failed to negate all bases of personal jurisdiction,

particularly, specific jurisdiction; thus, the trial court did not err by denying

LTS’s special appearance. We overrule LTS’s sole issue on appeal.

                                   VI. Goyal

      Goyal is a Canadian citizen and the sole officer and principal of LTS. He

has four AAdvantage® accounts in his own name, one of which American

alleges was established for him over the Internet.8 Goyal testified by deposition

that these accounts are his personal accounts but they are used for LTS’s

benefit. According to Goyal, he obtained the AAdvantage® rewards points in

his account from purchasing Starwood 9 credit card points, which were

converted into AAdvantage® rewards points. He authorized LTS to book tickets

on American in LTS’s customers’ names using rewards points from his




      8
        … Although Goyal swore in his special appearance that he became a
member by signing up on the internet, he later testified in his deposition that he
“likely” signed up over the internet and that a person he could not remember
“probably” registered this account for him via the internet.
      9
        … Starwood is a third party program that offers rewards points to its
participants.

                                       15
accounts.   Goyal contends that he did not personally purchase or sell

AAdvantage® rewards and that he does not have any customers; only LTS has

customers. But American presented evidence that LTS redeemed AAdvantage®

rewards points through Goyal’s personal AAdvantage® accounts.           It also

presented evidence that at least two of LTS’s Texas customers bought some

of the tickets issued with AAdvantage® rewards points from Goyal’s accounts

and that Goyal himself booked at least one ticket.

      American also presented evidence that to use the AAdvantage® rewards,

members must abide by the terms and conditions governing the AAdvantage®

rewards program, which bars members from purchasing, selling, or bartering the

rewards and award tickets.     Any customer enrolling in the AAdvantage®

program online must abide by the terms of the American Use Agreement, which

states that it is made and entered into in Tarrant County, Texas and governed

by Texas law. It also states, “Any lawsuit brought by you related to your

access to, dealings with, or use of the Site must be brought in the state or

federal courts of Tarrant County, Texas.”

      American contends that Goyal is subject to personal jurisdiction in Texas

by virtue of both his individual contacts with Texas and his acceptance of the

Use Agreement upon signing up to be an AAdvantage® member. But the Use




                                      16
Agreement, even if admissible and binding upon Goyal,10 does not show that

Goyal agreed to subject himself to the jurisdiction of the Texas courts.       It

clearly states that any suit brought by Goyal against American must be brought

in the courts of Tarrant County, Texas. But it does not conversely say that

Goyal agrees to subject himself to the jurisdiction of the Texas courts for

purposes of a suit against him arising out of his AAdvantage® membership.

Accordingly, we conclude and hold that the Use Agreement does not establish

personal jurisdiction over Goyal. See Ramsay v. Tex. Trading Co., 254 S.W.3d

620, 626 (Tex. App.—Texarkana 2008, pet. denied) (noting that courts

construe forum selection clause in same way as any other contract); Alenia

Spazio S.p.A. v. Reid, 130 S.W.3d 201, 219 (Tex. App.—Houston [14th Dist.]

2003, pet. denied) (“By agreeing to a Texas choice-of-law provision, a party

does not avail itself of any protection from Texas courts or voluntarily submit

to personal jurisdiction in Texas courts, absent an express understanding to that

effect.”).




      10
        … LTS and Goyal both objected to the admissibility of the Use
Agreement and both contend that it is not binding upon them. However, we
need not address these arguments because we determine that the Use
Agreement does not establish jurisdiction in this case. See Tex. R. App. P.
47.1; In re Roxsane R., 249 S.W.3d 764, 772 (Tex. App.—Fort Worth 2008,
orig. proceeding).

                                       17
      Even if a nonresident corporate officer’s acts were undertaken in a

corporate capacity, that officer may still be subject to personal jurisdiction in

a forum if those actions were tortious or fraudulent and if the tortious or

fraudulent actions satisfy the three Michiana minimum contacts factors: (1)

only the defendant’s contacts with the forum count; (2) the acts relied on must

be purposeful rather than merely fortuitous; and (3) the defendant must seek

some benefit, advantage, or profit by availing itself of the forum. 11 Michiana,

168 S.W.3d at 785, 788–89; Niehaus v. Cedar Bridge, Inc., 208 S.W.3d 575,

581 (Tex. App.—Austin 2006, no pet.); SITQ, 111 S.W.3d at 651. But the

mere fact that a nonresident defendant could foresee that his out-of-state

actions would cause injury in Texas is not sufficient to hale the nonresident into

Texas to litigate that injury. Niehaus, 208 S.W.3d at 582; see Michiana, 168

S.W.3d at 789–90.

      Although Goyal participated personally in LTS’s actions towards

Texas—by allowing LTS to use rewards points from his personal AAdvantage®

accounts and by personally booking travel for at least one LTS customer using




      11
         … American did not urge any other theory upon which to base Texas’s
jurisdiction over Goyal in his individual capacity, such as piercing the corporate
veil. See Niehaus v. Cedar Bridge, Inc., 208 S.W.3d 575, 581 (Tex.
App.—Austin 2006, no pet.); Tri-State Building Specialties, Inc. v. NCI Building
Sys., 184 S.W.3d 242, 250 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

                                       18
AAdvantage® rewards points—all of Goyal’s activity for which American

adduced evidence occurred in Vancouver.        There was no evidence that he

himself personally induced Texas residents to engage in activities in Texas, nor

that he was aware of LTS’s employees’ directions to Texas residents to make

misrepresentations to American regarding the use of the customers’

AAdvantage® rewards points.       Cf. SITQ, 111 S.W.3d at 650 (holding that

evidence showing corporate officers’ individual participation in decision to

terminate tenant’s leases in Fort Worth building while directing others to assure

tenants that leases would not be terminated and that building would be rebuilt

was sufficient to establish minimum contacts as to officers individually).

Although there is evidence that Goyal accumulated a significant amount of

rewards   points   from   Starwood,    which    he   deliberately   converted   to

AAdvantage® rewards points that he allowed LTS to use, the evidence of his

individual activity in connection with LTS’s business does not rise to the level

of LTS’s purposeful availment of Texas’s jurisdiction.        See Niehaus, 208

S.W.3d at 582–83 (holding that officers of California corporation who gave

themselves bonuses in same year corporation failed to pay lease in Texas did

not purposefully avail themselves of Texas’s jurisdiction when all of their

activities occurred in California and only injury was felt in Texas). Accordingly,

we conclude and hold that Goyal negated all bases of personal jurisdiction

                                       19
asserted by American as to its claims against him in his individual capacity and

that the trial court thus erred by denying his special appearance. We sustain

his sole issue on appeal.

                                 VII. Main St.

      Main St. is a New York travel agency with its only place of business in

Rockland County, New York.        It does not advertise or market its services

outside of New York, and it does not maintain a website or engage in online

solicitations. Main St. obtains customers by word of mouth and by advertising

locally in New York. It does not have an office, bank account, or any other

property in Texas, nor does it have any employees or a registered agent in

Texas.

      When Main St. gets a call from a potential customer, it searches a Global

Distribution System (GDS) for airfare, hotels, or both. It contracts with a third-

party GDS provider, Sabre, to obtain flight information via the GDS.

      Main St. is authorized to sell and issue tickets on American and other

airlines as a party to an Airlines Reporting Agreement among Main St., the

Airlines Reporting Commission—a corporation owned by several airlines 12 —and


      12
        … “ARC is a corporation whose stockholders are the principal scheduled
airlines of the United States. ARC serves as the national clearinghouse for
issuing blank ticket stock and other forms of traffic documents to travel agents
to be issued as air passenger tickets by travel agents to their customers.” In

                                       20
“each carrier which is or may become a party to ARC’s carrier service

agreement and [which] has appointed [Main St.] as its agent for the issuance

of ARC traffic documents in connection with sales of air transportation and/or

ancillary services.” A provision of the ARC Agreement requires travel agents

to “comply with all instructions of the carrier” in issuing tickets.

      American issued an addendum to the ARC Agreement on April 1, 2005,

which it amended on December 19, 2006. 13 The 2005 and amended 2006

addenda each state that selling tickets on American after the effective date

constitutes an agreement by the agent to the terms of the addendum. Both

addenda contain the following forum selection clause:

      THE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES
      OF AMERICA SHALL GOVERN ANY DISPUTES BETWEEN
      AMERICAN AND AGENT ARISING OUT OF THE ARC AGREEMENT
      OR THIS ADDENDUM.        AGENT HEREBY SUBMITS AND
      CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE
      UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT



re Vinogradova, 270 B.R. 159, 163 (Bkrtcy. S.D.N.Y. 2001).
      13
       … An earlier version of the addendum effective in September 1993
contained the following forum selection clause:

      AGENT HEREBY SUBMITS AND CONSENTS TO THE NON-
      EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT
      COURT FOR THE NORTHERN DISTRICT OF TEXAS AND THE
      COURTS OF THE STATE OF TEXAS IN ANY DISPUTES BETWEEN
      AMERICAN AND AGENT ARISING OUT OF THE ARC REPORTING
      AGREEMENT OR THIS ADDENDUM.

                                       21
      OF TEXAS AND THE COURTS OF THE STATE OF TEXAS FOR ALL
      THESE DISPUTES.

      American contends that this addendum contains its carrier-specific

“instructions” that Main St. agreed to abide by in the ARC Agreement and that

by continuing to sell tickets on American, Main St. agreed to be bound by the

forum selection clause. Main St. contends that the forum selection clause

should not be enforced against it because it was not signed by either party,

Main St. was not aware of the clause, and it is a contract of adhesion.14

      A court must presume that a forum selection clause is valid and

enforceable and must enforce the clause unless the opposing party meets a

“heavy burden of proof” to show that (1) the clause was procured by fraud,

undue influence, or overreaching or (2) enforcement would be unreasonable and

unjust. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 17, 92 S. Ct. 1907,

1917 (1972); Michiana, 168 S.W.3d at 793; In re Boehme, 256 S.W.3d 878,

881 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding).           This is




      14
         … Main St. also contends that the dispute does not come within the
scope of the forum selection clause; however, American alleges that Main St.
sold tickets in violation of the terms of the addendum and the ARC agreement,
which obligates agencies to do business with the carriers in good faith. Thus,
if the forum selection clause is applicable to Main St., American’s claims fall
squarely within its scope. See Deep W ater Slender Wells, Ltd. v. Shell Int’l
Exploration & Prod., Inc., 234 S.W.3d 679, 687–89 (Tex. App.—Houston [14th
Dist.] 2007, pet. denied).

                                      22
essentially a fundamental fairness inquiry; in determining the fairness of such

a clause, courts should consider (1) whether there is an indication that the

forum was selected to discourage legitimate claims, (2) whether the opposing

party was given adequate notice of the forum selection clause, and (3) whether

the opposing party retained the option of rejecting the contract with impunity

following notice of the forum selection clause. Stobaugh v. Norwegian Cruise

Line Ltd., 5 S.W.3d 232, 235 (Tex. App.—Houston [14th Dist.] 1999, pet.

denied), (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 111

S. Ct. 1522, 1528 (1991), cert. denied, 531 U.S. 820 (2000)).

      American presented evidence through questioning Weber in his deposition

of a letter dated December 20, 2006 from its senior vice president of global

sales that notified agents that “[t]his week American Airlines released an

important update to its addendum to the ARC Agent Reporting Agreement, ARC

addendum.” It also presented evidence that it kept a list of the email addresses

to which the letter was sent, including Main St.’s. Further, American presented

evidence that the addendum was posted on AA.com in December 2006 as a

news item. When asked whether he accessed AA.com to review the update,

Weber answered, “Probably not.”

      Weber testified that he was not aware that the addendum was available

on AA.com and that he did not recall receiving a December 20, 2006 email

                                      23
with the letter regarding the update. Weber signed the ARC Agreement in New

York, but he did not sign any of the addenda. He testified that he was not

allowed to negotiate the terms of any of the agreements; he “just had to take

them as is.” However, when asked whether American represented to him that

there would be no negotiation of the terms, Weber answered, “they just send

[sic] me to sign.” Weber admitted that he contacted American almost daily in

carrying out his business.

      Contrary to Main St.’s contention, American introduced at least some

evidence that it notified Main St. of the amended addendum, which did not

substantively change the forum selection clause that had been a part of the

addendum since 1993.         Additionally, a party who signs an agreement is

presumed to know its contents, even those parts that incorporate other

documents by reference. In re Lyon Fin. Servs., 257 S.W.3d 228, 232 (Tex.

2008) (orig. proceeding); Mikey’s Houses, LLC v. Bank of Am., N.A., 232

S.W.3d 145, 167 (Tex. App.—Fort Worth 2007, no pet. [mand. pending])

(Livingston, J., dissenting). Although Weber testified that he had to take the

ARC Agreement and addenda as they were presented to Main St., there is no

evidence that Main St. was obligated to sell tickets on American under the ARC

Agreement or that it was prohibited under the ARC Agreement from ceasing to

sell tickets on American at any time it wished. A bargain is not negated simply

                                       24
because one party may have been in a more advantageous bargaining position;

only if there is evidence of fraud, unfair surprise, or oppression will a court

refuse to enforce a forum selection clause. Lyon Fin. Servs., 257 S.W.3d at

233; see In re Vinogradova, 270 B.R. 159, 172 (Bkrtcy. S.D.N.Y. 2001) (noting

that relationship between travel agent and ARC in that case was “arm’s length,

commercial and contractual in nature”); cf. In re Halliburton Co., 80 S.W.3d

566, 572 (Tex. 2002) (holding arbitration provision not unconscionable even

though employer made take-it-or-leave-it offer to at-will employees), cert.

denied, 537 U.S. 1112 (2003). Moreover, a contract of adhesion is not per se

unconscionable or void. Lyon Fin. Servs., 257 S.W.3d at 233.

      Main St. has been in the travel business since April 1984. It sells tickets

not only to individual customers, but it is also a wholesaler of tickets to about

twenty other travel agents. In one of the emails he sent to American in 2004,

Weber represented that “[t]his past year I had over 10 million dollars in sales.”

      Based on the foregoing, we conclude and hold that the forum selection

clause in American’s addendum to the ARC Agreement does not fail for lack of

fundamental fairness; Main St. has not met its “heavy burden” to prove fraud,

overreaching, or such a one-sidedness to the transaction that the provision is

unconscionable. As such, the trial court was obligated to enforce the provision.

See Michiana, 168 S.W.3d at 793. We conclude and hold that the trial court

                                       25
did not err by denying Main St.’s special appearance, and we overrule Main

St.’s sole issue on appeal.

                                 VIII. Weber

      Weber is a New York resident and the president of Main St. He does not

maintain a place of business or residence in Texas. According to American,

Weber does business in Texas through continuous contacts with American,

including emails, phone calls, letters, and various other matters such as

generating business and contract negotiations. 15 To benefit Main St. by selling

more tickets on American, Weber, as president of Main St., dealt with American

on a daily basis. Weber admitted that Main St.’s doing more business with

American benefitted him personally because it translated into more profit for

Main St.    According to American, W eber’s contacts with American are

substantially connected to its claims against him because during those

contacts, he failed to disclose that Main St. was defrauding the AAdvantage®

program. See Moki Mac, 221 S.W.3d at 585.

      American did not present any evidence that Weber’s contacts with it

were undertaken in any capacity other than as president of Main St., nor did it

present any evidence of alter ego or piercing the corporate veil. Thus, the


      15
        … American concedes in its surreply brief that its jurisdictional
allegations against Weber relate only to specific jurisdiction.

                                      26
analysis applicable to Goyal, above, applies, and we must determine whether

any alleged fraudulent or tortious action by Weber satisfies the three Michiana

factors. See Michiana, 168 S.W.3d at 785, 788–89; Niehaus, 208 S.W.3d at

581; SITQ, 111 S.W.3d at 651.

      Although American presented some evidence that a travel agent named

Israel Odze booked tickets using AAdvantage® rewards points for third party

customers using Main St.’s GDS code, and that Weber admitted in a telephone

conversation with an American representative that Odze was an agent of Main

St.’s, it did not present evidence that Weber had any personal knowledge of

Odze’s activities. American seeks to show Weber’s knowledge by evidence

that as president of Main St., he was responsible for “running the place.” But

Weber testified that he thought Odze was located in Israel and that Main St.

sometimes allowed independent agents to use its GDS codes to book the

wholesale tickets it sold to those agents.    There is no evidence that Odze

operated out of Main St.’s offices in a way that Weber would have necessarily

had knowledge of Odze’s activities; Main St. had several employees, including

an employee responsible for accounting. Although American rightly points out

that the trial court was free to disbelieve Weber’s testimony that he did not

direct Odze to engage in any tortious conduct, it nevertheless failed to present

any evidence linking Weber directly to Odze’s actions such that he could be

                                      27
charged with knowledge and approval of those actions. Cf. SITQ, 111 S.W.3d

at 650. Thus, we conclude and hold that Weber negated American’s alleged

bases of personal jurisdiction and that, therefore, the trial court erred by

denying Weber’s special appearance. We sustain Weber’s second issue.16

                                IX. Conclusion

      Having determined that the trial court did not err by denying LTS’s and

Main St.’s special appearances, we affirm the trial court’s orders denying their

special appearances. However, having determined that the trial court erred by

denying Goyal’s and Weber’s special appearances, we reverse the trial court’s

orders denying their special appearances and render judgment dismissing

American’s claims against each of them for want of personal jurisdiction. See

BMC Software, 83 S.W.3d at 801.




                                                 TERRIE LIVINGSTON
                                                 JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DELIVERED: December 31, 2008




      16
      … Having determined that Weber is entitled to relief on his second issue,
we need not address his first. See Tex. R. App. P. 47.1.

                                      28
