Affirmed and Opinion filed February 25, 2020.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00133-CV

                 AMEC FOSTER WHEELER PLC, Appellant

                                         V.
          ENTERPRISE PRODUCTS OPERATING LLC, Appellee

                    On Appeal from the 151st District Court
                            Harris County, Texas
                      Trial Court Cause No. 2016-59155

                                  OPINION
      In this interlocutory appeal, a company organized under the laws of
England and Wales challenges the overruling of its special appearance based on
specific jurisdiction and the plaintiff’s alter-ego theory of personal jurisdiction.
Concluding that the trial court did not err in overruling the special appearance
based on specific jurisdiction, we affirm.
                 I. FACTUAL AND PROCEDURAL BACKGROUND

      Appellee/plaintiff Enterprise Products Operating LLC, a Texas limited
liability company with its principal place of business in Texas, sued two
defendants in the trial court below: (1) Foster Wheeler USA Corporation, a
Delaware corporation now known as Amec Foster Wheeler USA Corporation,
with its principal place of business in Texas (“Foster Wheeler”); and (2) Amec
Foster Wheeler plc, a company organized under the laws of England and Wales,
with its principal place of business in England (“Foster Wheeler PLC”).

      In July 2013, Enterprise and Foster Wheeler executed a contract for the
engineering, procurement, and construction of a propane dehydrogenation
facility in Mont Belvieu, Texas (the “Contract”). According to Enterprise’s live
pleading, the primary purpose of a propane dehydrogenation facility is to convert
propane into propylene, which is an ingredient in plastic and various other
products. The parties to the Contract agreed that the Contract would be governed
by, and construed and enforced in accordance with, Texas law. The parties
consented to the personal jurisdiction of any state or federal court located in
Harris County, Texas, in any legal proceeding with respect to the Contract.

      Enterprise alleges that from July 2013 through October 2014, Foster
Wheeler failed to take many actions that it should have taken and failed to
comply with the Contract in many respects. Enterprise claims that as it became
evident that Foster Wheeler had no idea how much engineering work it had left
to complete, in October 2014, Enterprise called for a complete engineering stand-
down to assess the severity of Foster Wheeler’s engineering issues. According to
Enterprise, as a result of this stand-down assessment, it became obvious that
Foster Wheeler had a significant volume of engineering work left to do, which
was wholly inconsistent with the schedule and Foster Wheeler’s staffing
                                         2
projections. Enterprise alleges that around this time, Foster Wheeler knowingly
and falsely misrepresented the project’s schedule to Enterprise to avoid being
terminated as contractor under the Contract.

      On November 13, 2014, Foster Wheeler PLC, formerly known as Amec
plc, indirectly acquired Foster Wheeler. As a result, the name of Foster Wheeler
changed from “Foster Wheeler USA Corporation” to “Amec Foster Wheeler
USA Corporation.” Enterprise alleges that after this transaction, Foster Wheeler
PLC took over control of the project and replaced many of Foster Wheeler’s
project managers and leaders with its own personnel. Enterprise claims that,
through its words and actions, Foster Wheeler PLC “purposefully inserted itself
in the contractual relationship between Enterprise and Foster Wheeler, stood in
Foster Wheeler’s shoes[,] . . . supplanted Foster Wheeler’s management of daily
operations, and assumed and ratified Foster Wheeler’s obligations and benefits
under the [Contract].” According to Enterprise, Simon Naylor, who served as
Foster Wheeler PLC’s “Group President, Americas,” assumed ultimate control
over the project almost immediately following the acquisition. Enterprise claims
that Naylor (1) assigned legacy Amec personnel from around the world to travel
to Texas and work on the project, (2) met face to face many times with
Enterprise management, executives, and board members regarding the project at
Enterprise’s Houston, Texas headquarters; and (3) regularly reported back to
Foster Wheeler PLC’s Chief Executive Officer regarding the project’s status and
the efforts to turn the project around and satisfy Enterprise.

      Enterprise asserts that Naylor, Jeff Reilly, and Peter Bailey were
employees or agents of Foster Wheeler PLC. Enterprise alleges that Naylor,
Reilly, and Bailey met with Enterprise management several times in Houston and
that during these meetings the Enterprise representatives explained the dire state

                                           3
of the project, Foster Wheeler’s dismal performance to date, and the highly
disturbing trajectory of the costs and schedule. Enterprise claims that it was
prepared to terminate the Contract and replace Foster Wheeler with another
contractor but for Foster Wheeler PLC stepping in, bringing in new legacy Amec
personnel, and taking over the project. According to Enterprise, Foster Wheeler
PLC’s management agreed that Foster Wheeler’s performance had been poor,
and Foster Wheeler PLC stated that it took full ownership and responsibility for
Foster Wheeler’s failures. Enterprise alleges that Foster Wheeler PLC
represented that it would work to address these concerns immediately, use its
“global resources” to get the project back on track, and ensure that all future
work on the project would be performed properly to Enterprise’s satisfaction.
Enterprise asserts that these representations were material to Enterprise, and
effectively gained Foster Wheeler a “stay of execution” because Enterprise relied
upon those representations in deciding not to terminate Foster Wheeler at that
time. According to Enterprise, Naylor, Reilly, and Bailey, on behalf of Foster
Wheeler PLC, controlled the project and its team thereafter and communicated
directly with Enterprise management about the project’s status.

      Enterprise claims that despite the alleged promises and personnel changes,
Foster Wheeler PLC did not rescue the failing project. Enterprise claims that
failures continued, including negligent construction work, and that breaches of
contractual duties, warranties, and common-law duties of care by Foster Wheeler
PLC and Foster Wheeler directly caused enormous cost overruns and schedule
delays on the project. Enterprise claims that by the fall of 2015, it had no choice
but to hire a replacement general contractor. According to Enterprise, “[Foster
Wheeler PLC]/Foster Wheeler” and Enterprise agreed to the “Transition Services
Agreement, under which the parties agreed to a partial termination of the


                                         4
Contract and the selection of Optimized Process Designs, LLC to take over the
remaining construction work while “[Foster Wheeler PLC]/Foster Wheeler”
remained responsible for the remaining engineering work. Enterprise asserts that
as Optimized Process took over the construction, Enterprise and Optimized
Process discovered many additional, significant problems with Foster Wheeler’s
and Foster Wheeler PLC’s work.

       In September 2016, Enterprise terminated the Contract for cause and filed
this lawsuit against Foster Wheeler and Foster Wheeler PLC (collectively the
“Foster Wheeler Parties”). Enterprise alleges that Foster Wheeler PLC is jointly
and severally liable for Foster Wheeler’s wrongful conduct. Enterprise asserts a
fraudulent-inducement claim against Foster Wheeler only and claims against
both of the Foster Wheeler Parties for (1) breach of contract, (2) breach of
warranty, (3) “string-along fraud,” (4) professional negligence, (5) unjust
enrichment, and (6) money had and received. Enterprise also seeks to recover
exemplary damages based on the alleged gross negligence of each of the Foster
Wheeler Parties. Enterprise also asserts against Foster Wheeler PLC claims for
negligent misrepresentation and purported claims for equitable estoppel and
direct-benefits estoppel.   In addition to seeking substantial money damages,
Enterprise seeks the remedies of equitable disgorgement and fee forfeiture.

       Foster Wheeler PLC filed a special appearance challenging the trial court’s
ability to exercise personal jurisdiction over Foster Wheeler PLC.            Foster
Wheeler PLC asserts that it is a holding company organized under the laws of
England and Wales with its principal place of business in England. Foster
Wheeler PLC states that virtually all of its employees live and work in the United
Kingdom. Foster Wheeler PLC submitted evidence that, as of October 31, 2016,
it owned the controlling interest in 439 subsidiaries and affiliates that operated in

                                         5
    more than 55 countries in virtually every region of the world. According to
    Foster Wheeler PLC and an affidavit it submitted, Foster Wheeler PLC derives
    all of its revenue from the return on its investments in its subsidiaries and
    affiliates, and Foster Wheeler PLC does not directly engage in the business
    conducted by its subsidiaries and affiliates. According to Foster Wheeler PLC,
    its subsidiaries and affiliates conduct all operations. And, the subsidiaries and
    affiliates or their employees in the countries where they are authorized to operate
    hold the licenses to engage in these operations. Foster Wheeler PLC claims that
    all employees who engage in the operations of the subsidiaries and affiliates do
    so on behalf of the subsidiaries and affiliates and not on behalf of Foster Wheeler
    PLC.     Foster Wheeler PLC asserted that Naylor, Reilly, and Bailey are
    employees of Amec E&C Services, Inc., a Georgia corporation with its principal
    place of business in Georgia (“Amec E&C”) and not employees of Foster
    Wheeler PLC. According to Foster Wheeler PLC, no representative of Foster
    Wheeler PLC was present at any of the meetings on which Enterprise bases its
    claims. Foster Wheeler PLC submitted a substantial amount of evidence and
    challenged the trial court’s ability to exercise personal jurisdiction over Foster
    Wheeler PLC based on specific jurisdiction, general jurisdiction, or on Foster
    Wheeler PLC’s alleged status as an alter ego of Foster Wheeler.1

           Enterprise opposed the special appearance and submitted evidence.
    Enterprise made various statements and assertions, including an argument that
    Naylor, Reilly, and Bailey acted as employees and agents of Foster Wheeler
    PLC. Enterprise asserted that the trial court properly could exercise personal
    jurisdiction over Foster Wheeler PLC based on specific jurisdiction, general
    jurisdiction, or on Foster Wheeler PLC’s alleged status as an alter ego of Foster

1
    Foster Wheeler PLC made various other statements and assertions not described here.

                                                 6
Wheeler.

      The trial court overruled Foster Wheeler PLC’s special appearance based
on both specific jurisdiction and the alter ego theory. The trial court determined
that it could not exercise personal jurisdiction over Foster Wheeler PLC based on
general jurisdiction. The trial court issued findings of fact and conclusions of
law. Foster Wheeler PLC timely perfected this interlocutory appeal from the
trial court’s special-appearance order.

                             II. ISSUES AND ANALYSIS

      In four appellate issues, Foster Wheeler PLC asserts that (1) the trial court
erred in holding that it may exercise personal jurisdiction over Foster Wheeler
PLC based on specific jurisdiction; (2) the trial court erred in finding that Foster
Wheeler and Foster Wheeler PLC are alter egos for jurisdictional purposes; (3)
the trial court erred in finding that Foster Wheeler PLC has a “significant
presence in Texas” and “numerous and substantial contacts with Texas”; and (4)
the exercise of personal jurisdiction over Foster Wheeler PLC in this case would
not comport with traditional notions of fair play and substantial justice.

A.    Did the trial court err in determining that it could exercise personal
      jurisdiction over Foster Wheeler PLC based on specific jurisdiction?

      In its first issue, Foster Wheeler PLC challenges the trial court’s
determination that it may exercise personal jurisdiction over Foster Wheeler PLC
based on specific jurisdiction. Foster Wheeler PLC challenges several of the trial
court’s findings. We begin the analysis by examining the standard of review and
personal-jurisdiction legal standards and then we consider whether the evidence
before the trial court supported certain findings.




                                          7
      1.     Standard of Review

      Whether Foster Wheeler PLC is subject to personal jurisdiction in Texas is
a question of law subject to de novo review. See BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex. 2002). But, the trial court frequently must
resolve questions of fact before deciding the jurisdiction question. See id. When,
as in today’s case, the trial court rules on a special appearance and issues
findings of fact and conclusions of law, the appellant may challenge the legal and
factual sufficiency of the evidence supporting the fact findings. See id.

      Foster Wheeler PLC has challenged the legal and factual sufficiency of the
evidence supporting several trial court findings. When reviewing the legal
sufficiency of the evidence, we consider the evidence in the light most favorable
to the challenged finding and indulge every reasonable inference that would
support it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We must
credit favorable evidence if a reasonable factfinder could and disregard contrary
evidence unless a reasonable factfinder could not. See id. at 827. We must
determine whether the evidence at trial would enable reasonable and fair-minded
people to find the facts at issue. See id. The factfinder is the only judge of
witness credibility and the weight to give to testimony. See id. at 819.

      When reviewing a challenge to the factual sufficiency of the evidence, we
examine the entire record, considering both the evidence in favor of, and contrary
to, the challenged finding. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402,
406–07 (Tex. 1998). After considering and weighing all the evidence, we set
aside the fact finding only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Id. The trier of fact is the sole judge
of the credibility of the witnesses and the weight to be given to their testimony.
GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615–16 (Tex. App.—

                                         8
Houston [14th Dist.] 2001, pet. denied).        We may not substitute our own
judgment for that of the trier of fact, even if we would reach a different answer
on the evidence. Maritime Overseas Corp., 971 S.W.2d at 407. The amount of
evidence necessary to affirm a judgment is far less than that necessary to reverse
a judgment. Pascouet, 61 S.W.3d at 616.



      2.     Legal Standards as to the Exercise of Personal Jurisdiction

      The Texas long-arm statute allows a court to exercise personal jurisdiction
as far as the federal constitutional requirements of due process will permit. See
Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041–.045 (West, Westlaw through
2019 R.S.); BMC Software, 83 S.W.3d at 795. The plaintiff bears the initial
burden of pleading allegations sufficient to confer jurisdiction under the Texas
long-arm statute. See Moncrief Oil Int’l, Inc. v. OAO Gazprom, 414 S.W.3d 142,
149 (Tex. 2013). The long-arm statute allows the exercise of personal
jurisdiction over a nonresident defendant who “contracts by mail or otherwise
with a Texas resident and either party is to perform the contract in whole or in
part in this state” or who “commits a tort in whole or in part in [Texas].” Tex.
Civ. Prac. & Rem. Code § 17.042(1),(2) (West, Westlaw through 2019 R.S.).
Because Enterprise satisfied its initial burden, the burden shifted to Foster
Wheeler PLC to negate all potential bases for personal jurisdiction Enterprise
alleged. See Moncrief Oil Int’l, Inc., 414 S.W.3d at 149.

      Personal jurisdiction over a nonresident defendant is constitutional when
two conditions are met: (1) the defendant has established minimum contacts with
the forum state and (2) the exercise of personal jurisdiction comports with
traditional notions of fair play and substantial justice.   See BMC Software, 83


                                          9
S.W.3d at 795. For a defendant to have sufficient contacts with the forum, it is
essential that there be some act by which the defendant “purposefully avails”
itself of the privilege of conducting activities in the forum state, thus invoking
the benefits and protections of its laws. Michiana Easy Livin’ Country, Inc. v.
Holten, 168 S.W.3d 777, 784 (Tex. 2005). In analyzing personal jurisdiction,
only the defendant’s purposeful contacts with the forum count; personal
jurisdiction over a defendant cannot be based on the unilateral activity of another
party.     Id. at 785.   A defendant should not be subject to a Texas court’s
jurisdiction based on random, fortuitous, or attenuated contacts. Id. For there to
be purposeful availment, a defendant must seek some benefit, advantage, or
profit by “availing” itself of the jurisdiction. Id.

         Although not determinative, foreseeability is an important consideration in
deciding whether the nonresident defendant purposefully has established
minimum contacts with Texas. BMC Software, 83 S.W.3d at 795. The concept
of foreseeability is implicit in the requirement that there be a substantial
connection between the defendant and Texas arising from the defendant’s
conduct purposefully directed toward Texas. See Guardian Royal Exch. Assur.,
Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 227 (Tex. 1991).

         Specific jurisdiction exists when the claims in question arise from or relate
to the defendant’s purposeful contacts with Texas. Am. Type Culture Collection
Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002). In conducting a specific-
jurisdiction analysis, we focus on the relationship among the defendant, Texas,
and the litigation. See Guardian Royal, 815 S.W.2d at 228. For a nonresident
defendant’s contacts with Texas to support an exercise of specific jurisdiction,
there must be a substantial connection between the defendant’s purposeful
contacts with Texas and the operative facts of the litigation. See Moki Mac River

                                            10
Expeditions v. Drugg, 221 S.W.3d 569, 585 (Tex. 2007).

          3.       Fact Findings as to Specific Jurisdiction
          The trial court made the following findings relating to specific jurisdiction:
     5. [Foster Wheeler PLC’s] employees, agents, and/or apparent agents—
        including Simon Naylor (Group President of [Foster Wheeler PLC’s]
        Americas Business Unit), Jeff Reilly ([Foster Wheeler PLC’s] Group
        President of Strategy and Business Development), and Peter Bailey
        ([Foster Wheeler PLC’s] Senior Vice President of Project Delivery for the
        Americas Business Unit, and one of Naylor’s direct reports)—were
        physically present in Texas for substantial periods of time during which
        they directed and managed the [project].2
     6. [Foster Wheeler PLC], through its employees, agents, and/or apparent
        agents, among other things:
                   a.      Attended numerous meetings at Enterprise’s Houston
                           headquarters about the [project], visited the [project] site in
                           Mont Belvieu, and exchanged numerous emails and letters with
                           Enterprise in Texas about the [project].
                   b. Directed, controlled, and managed the [project] in Texas.
                   c. Made representations to Enterprise in Texas that gave rise to
                      Enterprise’s fraud, negligent misrepresentation, and estoppel
                      claims against [Foster Wheeler PLC].
                   d. Performed and/or was responsible for acts and omissions in
                      Texas, regarding the [project] in Texas, which gave rise to
                      Enterprise’s gross and professional [sic] negligence and unjust
                      enrichment claims against [Foster Wheeler PLC].
                   e. Made representations and/or promises, and performed acts and/or
                      omissions, in Texas that gave rise to Enterprise’s assumption
                      and breach of contract claims against [Foster Wheeler PLC].


          4. Sufficiency of the Evidence that Naylor was an employee of Foster
             Wheeler PLC
          Foster Wheeler PLC agrees that Naylor maintained his office in Houston,

2
    Italics in original.

                                                  11
Texas, during the relevant time period. However, Foster Wheeler PLC asserts
that Naylor was an employee of Amec E&C who acted on behalf of Foster
Wheeler—not Foster Wheeler PLC—when he engaged in the conduct upon
which Enterprise relies in asserting its claims.

      The record contains a letter that served as Naylor’s employment agreement
at the time Naylor engaged in the conduct on which Enterprise bases its claims
(the “Relevant Time”). Naylor testified that Will Serle was the Group Human
Resources Director of Foster Wheeler PLC and that Serle sent the letter from
London to Naylor in Houston, Texas, using Foster Wheeler PLC letterhead. In
this correspondence, Serle says that the letter sets out the terms and conditions
applicable to Naylor’s new role as “Group President, Americas,” in which
Naylor will report to Chief Executive Officer Samir Brikho. Brikho was Chief
Executive Officer of Foster Wheeler PLC. In the letter, Serle states that in his
position he also will be serving as a member of Foster Wheeler PLC’s “Group
Management Committee” and that Naylor “will work out of the Houston office.”
Serle stated that “[t]his document will serve as an Employment Agreement
between you, [Amec E&C][,] AMEC Global Resources[,] and the parent
company [Foster Wheeler PLC], collectively ‘AMEC.’”           In the letter Serle
discusses the terms of Naylor’s “employment with AMEC,” refers to Naylor’s
employer as “AMEC,” and refers to Naylor as an “employee of AMEC,” a
defined term that includes Foster Wheeler PLC and two other entities, but does
not include Foster Wheeler. According to the letter, “AMEC,” which includes
Foster Wheeler PLC, may terminate Naylor’s employment for cause if Naylor
disobeys “lawful orders or directives of the [Foster Wheeler PLC] Board or the
CEO.” In the letter Serle states that the internal laws of the state in the United
States in which Naylor resides will govern the validity, interpretation,


                                          12
construction, and performance of the employment agreement.              The record
reflects that Naylor was residing in Texas, so Texas law governed Naylor’s
employment by the three entities, including Foster Wheeler PLC, while Naylor
was working out of an office in Houston, Texas.          Naylor signed the letter
agreement and returned it to Serle.

      The record also contains a document in which the Chief Executive Officer
of Foster Wheeler PLC delegated authority to the Group Presidents, which would
include Naylor as Group President of the Americas. In this document, Foster
Wheeler PLC’s Chief Executive Officer stated that the Group Presidents “are
mandated by the [Chief Executive] to direct and manage the day-to-day business
operations of [Foster Wheeler PLC] within the respective geographical regions of
the world specifically assigned to them by the Chief Executive in accordance
with / as clarified below.” Texas fell within the region of the Americas assigned
to Naylor as Group President of the Americas. Under the document, the Group
Presidents have authority to enter into certain types of contracts and to take other
actions.

      Naylor testified at his deposition, giving details about his encounters with
Enterprise, including the following: (1) Naylor’s business card said he was
“Group President of the Americas” and showed that his office was in Houston,
Texas; (2) Naylor believed that he introduced himself to Richard Hutchison, a
representative of Enterprise, as “the Group President of the Americas business
unit”; (3) Naylor introduced himself to senior Enterprise personnel as “the Group
President of the Americas”; (4) Naylor did not recall whether from January 2015
through May 2016, there was an individual serving as Chief Executive Officer of
Amec Foster Wheeler USA Corporation; and (5) Naylor did not know who
owned the office in Houston at which he was working during the Relevant Time.

                                         13
The record also contains the employment agreement for John Pearson, the person
who took over as Group President of the Americas after Naylor left that position.
Under Pearson’s employment agreement, Pearson’s only employer is Foster
Wheeler PLC.

      Naylor submitted an affidavit in which he stated that during the Relevant
Time he was employed by Amec E&C and that he has never been an officer or
director of Foster Wheeler PLC. The evidence contains W-2 forms issued by
Amec E&C showing that Naylor is an employee of Amec E&C. Naylor stated
that when he was Group President of the Americas he maintained his office at the
headquarters of Foster Wheeler in Houston. According to Naylor, he has “never
intentionally represented to anyone that [he] was acting on behalf of, or with the
authority from, [Foster Wheeler PLC].”

      Under Naylor’s employment agreement, Naylor was an employee of three
companies, one of which was Foster Wheeler PLC.             Under the delegated-
authority document, the Chief Executive Officer of Foster Wheeler PLC
delegated authority to Naylor as Group President of the Americas, and mandated
that Naylor direct and manage the day-to-day business operations of Foster
Wheeler PLC within the Americas in accordance with the delegated-authority
document. The record also contains evidence showing that the person who
succeeded Naylor as Group President of the Americas served as an employee
only of Foster Wheeler PLC.        Despite the conflicting evidence, under the
applicable standard or review, we conclude that the evidence is legally and
factually sufficient to support a finding that Naylor was acting as an employee of
Foster Wheeler PLC. See Huynh v. Nguyen, 180 S.W.3d 608, 620 (Tex. App.—
Houston [14th Dist.] 2005, no pet.). Thus, the evidence is legally and factually
sufficient to support the trial court’s finding that Naylor was an employee, agent,

                                         14
and/or apparent agent of Foster Wheeler PLC.
        5. Sufficiency of the Evidence that Reilly was an employee of Foster
           Wheeler PLC
       Foster Wheeler PLC agrees that Reilly maintained his office in Houston,
Texas, during the Relevant Time. But, Foster Wheeler PLC asserts that Reilly
was an employee of Amec E&C who acted on behalf of Foster Wheeler—not
Foster Wheeler PLC—when he engaged in the conduct upon which Enterprise
relies in asserting its claims.

       The record contains a letter that served as Reilly’s employment agreement
during the Relevant Time. Will Serle sent that letter to Reilly in Houston, Texas.
Evidence in the record shows that Serle was the Group Human Resources
Director of Foster Wheeler PLC. Serle sent the letter using Foster Wheeler PLC
letterhead. In the letter Serle confirms an offer of employment for Reilly to serve
as “Group President, Business Development,” in which Reilly will report to
Chief Executive Officer Samir Brikho. Brikho was Chief Executive Officer of
Foster Wheeler PLC. In the letter, Serle states that in this position Reilly also
will serve as a member of Foster Wheeler PLC’s “Management Team” and that
Reilly “will work out of the Houston office.” Serle stated that “[t]his document
will serve as an Employment Agreement between you, [Amec E&C][,] and the
parent company [Foster Wheeler PLC], collectively ‘AMEC.’” In the letter Serle
discusses the terms of Reilly’s “employment with AMEC,” refers to Reilly’s
employer as “AMEC,” and refers to Reilly as an “employee of AMEC,” a
defined term that includes Foster Wheeler PLC and Amec E&C, but does not
include Foster Wheeler. According to the letter, “AMEC,” which includes Foster
Wheeler PLC, may terminate Reilly’s employment for cause if Reilly disobeys
“lawful orders or directives of the [Foster Wheeler PLC] Board or the CEO.” In
the letter Serle states that the internal laws of the state of Reilly’s residence will

                                          15
govern the validity, interpretation, construction, and performance of the
employment agreement. The record reflects that Reilly was residing in Texas, so
Texas law would govern Reilly’s employment by Foster Wheeler PLC and Amec
E&C while Reilly was working out of an office in Houston, Texas. Reilly signed
the letter agreement and returned it to Serle.

      The record also contains a document in which the Chief Executive Officer
of Foster Wheeler PLC delegates authority to the Group Presidents.            Reilly
served as “Group President, Business Development.” In delegating authority,
Foster Wheeler PLC’s Chief Executive Officer states that the Group Presidents
“are mandated by the [Chief Executive] to direct and manage the day-to-day
business operations of [Foster Wheeler PLC] within the respective geographical
regions of the world specifically assigned to them by the Chief Executive in
accordance with / as clarified below.” Under the document, the Group Presidents
have authority to enter into certain types of contracts and to take other actions.

      Reilly testified at his deposition that during his meetings or other
conversations with Enterprise personnel, he never represented to anyone that he
was an employee of Amec E&C and that he never would have said that he was
employed by Foster Wheeler. Reilly testified that he never reported to anyone at
Foster Wheeler.

      Reilly submitted an affidavit in which he stated that during the Relevant
Time he was employed by Amec E&C and that he has never been an officer or
director of Foster Wheeler PLC. The evidence contains W-2 forms issued by
Amec E&C showing that Reilly is an employee of Amec E&C. Reilly also
stated that (1) he is “Group President, Strategy and Business Development” and a
member of the Group Leadership Team that coordinates the management of the
operational subsidiaries and affiliates owned by Foster Wheeler PLC; (2) during

                                          16
the Relevant Time he established his office at the headquarters of Foster Wheeler
in Houston; (3) he has “never intentionally represented to anyone that [he] was
acting on behalf of, or with the authority from, [Foster Wheeler PLC]”; (4) when
he met with representatives of Enterprise he was not acting as a representative of
Foster Wheeler PLC; and (5) no officer, director, or other representative of
Foster Wheeler PLC ever attended the meetings with the Enterprise
representatives.

         Under Reilly’s employment agreement, Reilly is an employee of two
companies, one of which is Foster Wheeler PLC. Under the delegated-authority
document, Foster Wheeler PLC’s Chief Executive Officer delegated authority to
Reilly as Group President of Strategy and Business Development,3 and mandated
that he direct and manage the day-to-day business operations of Foster Wheeler
PLC within the respective geographical regions of the world specifically
assigned to him in accordance with the delegated-authority document. Though
the record contains conflicting evidence, under the applicable standard or review,
we conclude that the evidence is legally and factually sufficient to support a
finding that Reilly was acting as an employee of Foster Wheeler PLC. See
Huynh, 180 S.W.3d at 620. Thus, the evidence is legally and factually sufficient
to support the trial court’s finding that Reilly was an employee, agent, and/or
apparent agent of Foster Wheeler PLC.
         6.    Specific Jurisdiction
         In conducting a personal-jurisdiction analysis, we review the claims in
question and the evidence regarding the jurisdictional facts, but we do not
determine the merits of the claims. See TV Azteca, S.A.B. De C.V. v. Ruiz, 490
S.W.3d 29, 35 n.1 (Tex. 2016); Dresser-Rand Group v. Centauro Capital,

3
    In some places in the record, Reilly is referred to as “Group President, Business Development.”

                                                 17
S.L.U., 448 S.W.3d 577, 584 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Ultimate liability in tort is not a jurisdictional fact, and the merits of Enterprise’s
claims are not at issue in determining whether the trial court erred in ruling on
Foster Wheeler PLC’s special appearance. See id. Thus, though we describe the
substance of Enterprise’s claims for the purposes of our personal-jurisdiction
analysis, we do not adjudicate these claims or weigh their merit. See id. at 586,
n.4.

       Without commenting on the merits of Enterprise’s claims, we note that
Enterprise bases its claims for breach of contract, breach of warranty, negligence,
equitable estoppel, direct-benefits estoppel, unjust enrichment, and money had
and received on the alleged words and actions of Naylor, Reilly, and others in
Texas after November 13, 2014. Enterprise alleges that through these words and
actions, Foster Wheeler PLC assumed and ratified Foster Wheeler’s obligations
and benefits under the Contract. Likewise, without commenting on the merits of
Enterprise’s claims, we note that Enterprise bases its claims for “string-along
fraud” and negligent misrepresentation on the alleged words of Naylor, Reilly,
and others in Texas after November 13, 2014.

       In resolving the personal-jurisdiction issues in this appeal, we are not to
determine the validity of Enterprise’s various allegations as to the merits. See id.
Instead, we are to focus on the relationship among Foster Wheeler PLC, Texas,
and the litigation and determine whether a substantial connection exists between
Foster Wheeler PLC’s purposeful contacts with Texas and the operative facts of
the litigation. See Moki Mac River Expeditions, 221 S.W.3d at 585; Guardian
Royal, 815 S.W.2d at 228. Regardless of the merits, Enterprise’s claims arise
from, relate to, and have a substantial connection with the words and actions of
Naylor and Reilly in Texas during the Relevant Time. Because the evidence is

                                           18
legally and factually sufficient to support the trial court’s finding that Naylor and
Reilly were acting as employees of Foster Wheeler PLC, Naylor’s and Reilly’s
Texas contacts are attributable to Foster Wheeler PLC. See Huynh, 180 S.W.3d
at 620. We conclude that the trial court did not err in overruling Foster Wheeler
PLC’s special appearance based on specific jurisdiction. See id.

      To reach this conclusion, we need not and do not address whether the
evidence is legally or factually sufficient to support (1) a finding that Naylor or
Reilly directed and managed the project, (2) the trial court’s finding that Foster
Wheeler PLC, through its employees, agents, and/or apparent agents, directed,
controlled, and managed the project in Texas, (3) a finding that Foster Wheeler
PLC, through its employees, agents, and/or apparent agents, was responsible for
acts and omissions in Texas regarding the project in Texas that gave rise to
Enterprise’s negligence and unjust-enrichment claims, (4) a finding that Bailey
was an employee of Foster Wheeler PLC, (5) a finding that Naylor, Reilly, or
Bailey was an agent of Foster Wheeler PLC, (6) a finding that Naylor, Reilly, or
Bailey had actual or apparent authority, and (7) any of the trial court’s findings
regarding Enterprise’s allegation that Foster Wheeler is an alter ego of Foster
Wheeler PLC. See Huynh, 180 S.W.3d at 620, n.5.

      In its first issue, Foster Wheeler PLC asserts that the evidence is legally
and factually sufficient to support the trial court’s finding that Foster Wheeler
PLC “supplanted [Foster Wheeler] on the Contract and [the project] and took
over total control of, and responsibility for, the [project] in Texas.” We need not
and do not address this finding, in which the trial court addressed the merits of
Enterprise’s claims. See Dresser-Rand Group, 448 S.W.3d at 584.

      In its third issue, Foster Wheeler PLC asserts that the trial court erred in
finding that Foster Wheeler PLC has a “significant presence in Texas” and

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“numerous and substantial contacts with Texas.”          We need not and do not
address this issue. See Huynh, 180 S.W.3d at 620, n.5.

       We overrule the first issue and we need not address the second issue or the
third issue.

       7.      Traditional Notions of Fair Play and Substantial Justice

       In its fourth issue, Foster Wheeler PLC asserts that the exercise of personal
jurisdiction over Foster Wheeler PLC would not comport with traditional notions
of fair play and substantial justice. After a court finds the minimum contacts
necessary to exercise personal jurisdiction over a nonresident defendant, federal
due process requires the court to determine whether the exercise of that
jurisdiction comports with traditional notions of fair play and substantial justice.
See Guardian Royal Exch. Assur., Ltd., 815 S.W.2d at 228. In deciding this issue,
we consider the following factors: (1) the burden on the defendant, (2) the
interests of the forum state in adjudicating the dispute, (3) the plaintiff’s interest
in obtaining convenient and effective relief, (4) the interstate judicial system’s
interest in obtaining the most efficient resolution of controversies, and (5) the
shared interest of the several states in furthering fundamental substantive social
policies. Id. When the defendant is a resident of another nation, we also must
consider (a) the unique burdens placed on the defendant who must defend itself
in a foreign legal system, (b) the procedural and substantive policies of other
nations whose interests are affected by the assertion of jurisdiction by a state
court, and (c) the federal government’s interest in its foreign-relations policies.
Id. at 229. Only in rare cases will the exercise of personal jurisdiction not
comport with fair play and substantial justice when the nonresident defendant
purposefully has established minimum contacts with the forum state. Id. at 231.


                                          20
Foster Wheeler PLC must present a compelling case that the presence of some
other considerations would render the exercise of personal jurisdiction
unreasonable. See id.

      As to the burden of litigating this case in Harris County, Texas, Foster
Wheeler PLC, a company organized under the laws of England and Wales, does
not argue on appeal that this burden is unreasonable, nor does Foster Wheeler
PLC cite evidence in the record as to the magnitude of this burden. Indeed,
Foster Wheeler PLC’s briefing as to traditional notions of fair play and
substantial justice contains no citations to the record. Though litigating in Texas
imposes a burden on Foster Wheeler PLC, evidence in the record shows that, as
of October 31, 2016, Foster Wheeler PLC owned the controlling interest in 439
subsidiaries and affiliates that operated in more than 55 countries in virtually
every region of the world. Modern transportation and communication have made
it much less burdensome for a party to defend itself in a country in which it
engages in economic activity. Spir Star AG v. Kimich, 310 S.W.3d 868, 879
(Tex. 2010). The burden on Foster Wheeler PLC of litigating in Texas is not so
severe as to defeat the ability of Texas courts to exercise personal jurisdiction
over Foster Wheeler PLC in this case. See Moncrief Oil Int’l, Inc. v. OAO
Gazprom, 414 S.W.3d 142, 149 (Tex. 2013).

      Foster Wheeler PLC asserts that Texas has no interest in adjudicating
Enterprise’s dispute with Foster Wheeler PLC because Foster Wheeler PLC is a
foreign holding company without assets, offices, representatives, or agents in
Texas. But, Will Serle, the Group Human Resources Director of Foster Wheeler
PLC, signed off on letter agreements with Naylor and Reilly.              In each
employment agreement, (1) Foster Wheeler PLC was an employer, (2) the parties
agreed that the employee “will work out of the Houston office”; (3) the

                                         21
employment may be terminated for cause if the employee disobeys “lawful
orders or directives of the [Foster Wheeler PLC] Board or the CEO”; and (4) the
parties agreed that Texas law (the law of the state in which the employee resided)
would govern the validity, interpretation, construction, and performance of the
employment agreement. As discussed above, the evidence stands legally and
factually sufficient to support findings that Naylor and Reilly were acting as
employees of Foster Wheeler PLC. Though we do not address the merits of
Enterprise’s claims against Foster Wheeler PLC, Enterprise’s live pleading
shows that Enterprise asserts various claims against Foster Wheeler PLC and in
support of those claims alleges substantial damages to Enterprise, a Texas entity,
relating to a project for the construction of a propane dehydrogenation facility in
Mont Belvieu, Texas. See TV Azteca, S.A.B. De C.V., 490 S.W.3d at 35 n.1;
Dresser-Rand Group, 448 S.W.3d at 584. Texas holds a significant interest in
adjudicating the dispute between Enterprise and Foster Wheeler PLC.            See
Moncrief Oil Int’l, Inc., 414 S.W.3d at 155.

      Foster Wheeler PLC cites the United States Supreme Court’s discussion of
how an expansive view of general jurisdiction would not accord with fair play
and substantial justice vis-à-vis defendants from other countries. See Daimler
AG v. Bauman, 571 U.S. 117, 140 (2014). That discussion is not on point
because it involved general jurisdiction rather than specific jurisdiction, and,
more importantly, the Daimler AG case involved claims “having nothing to do
with anything that occurred or had its principal impact in [the forum state].” Id.
at 139. Foster Wheeler PLC cites only two cases in which a court found that the
exercise of personal jurisdiction over the defendant would not comport with
traditional notions of fair play and substantial justice despite the existence, or
presumed existence, of sufficient minimum contacts with the forum state. See


                                         22
Guardian Royal Exch. Assur., Ltd., 815 S.W.2d at 232–33; Juarez v. United
Parcel Service de Mexico S.A. de C.V., 933 S.W.2d 281, 285–86 (Tex. App.—
Corpus Christi 1996, no writ). In each case the interest of Texas in adjudicating
the dispute and each defendant’s contacts with Texas were significantly less than
in today’s case. See Guardian Royal Exch. Assur., Ltd., 815 S.W.2d at 232–33;
Juarez, 933 S.W.2d at 285–86. These cases are not on point.

      Foster Wheeler PLC asserts that Foster Wheeler is the only defendant that
was a party to the Contract and that Foster Wheeler is in this case to defend the
claims against Foster Wheeler. Foster Wheeler PLC claims that requiring it to
“defend the contractual obligations of a Texas subsidiary” would imply that
Foster Wheeler PLC “should expect to be dragged into any of the forums in
which its approximately 439 subsidiaries operate—an extremely unreasonable
burden.” These arguments implicitly ask us to adjudicate the merits of
Enterprise’s claims, a task we are not to undertake in determining personal
jurisdiction. See TV Azteca, S.A.B. De C.V., 490 S.W.3d at 35 n.1; Dresser-Rand
Group, 448 S.W.3d at 584. In addition, courts assess personal jurisdiction on a
case-by-case basis, so the ability of Texas courts to exercise personal jurisdiction
over Foster Wheeler PLC in today’s case does not mandate the conclusion that
courts in other cases will be able to exercise personal jurisdiction over Foster
Wheeler PLC. See Grupo TMM, S.A.B. v. Perez, 327 S.W.3d 357, 365–66 (Tex.
App.—Houston [14th Dist.] 2010, pet. denied).

      After carefully considering the record and all of the factors in the legal
standard, we conclude that Foster Wheeler PLC has not made a compelling case
that the exercise of personal jurisdiction over Foster Wheeler PLC in this dispute
would be unreasonable. Therefore, we overrule the fourth issue.



                                         23
                               III. CONCLUSION

      Under the applicable standard or review, the evidence is legally and
factually sufficient to support a finding that Naylor and Reilly were acting as
employees of Foster Wheeler PLC. Thus, the evidence is legally and factually
sufficient to support the trial court’s finding that each of them was an employee,
agent, and/or apparent agent of Foster Wheeler PLC. Regardless of the merits,
Enterprise’s claims arise from, relate to, and have a substantial connection with
the words and actions of Naylor and Reilly in Texas during the Relevant Time.
The trial court did not err in overruling Foster Wheeler PLC’s special appearance
based on specific jurisdiction. The exercise of personal jurisdiction over Foster
Wheeler PLC in this case comports with traditional notions of fair play and
substantial justice.

      We affirm the trial court’s order on Foster Wheeler PLC’s amended
special appearance.




                                      /s/    Kem Thompson Frost
                                             Chief Justice

Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.




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