The opinion of the court was delivered by: JOYNER
This diversity action concerns an alleged letter agreement between Plaintiff Aircraft Guaranty Corporation ("AGC") and Defendant Kenneth F. Goodrich d/b/a K.F. Goodrich Associates, Inc. ("Goodrich") on behalf of Defendant Strato-Lift, Inc. ("SLI") for the sale of a used Cessna Citation II business jet (the "Airplane"). AGC, the purchaser, alleges that Defendants breached the agreement (the "Contract") by failing to allow the allegedly agreed upon pre-purchase inspection to be completed. AGC now seeks specific performance of the Contract or, in the alternative, damages, and attorney's fees under a Texas statute
that provides for the recovery of reasonable attorney's fees in contract actions. SLI has counterclaimed for breach of contract, misrepresentation and estoppel.
Though the parties vigorously contest the relative significance of the facts underlying this action, the facts themselves are largely undisputed.
Sometime during the summer of 1995, SLI, a Pennsylvania corporation with its principal place of business in Morgantown, Pennsylvania, decided to sell the Airplane, which SLI had used for business travel. In July of 1995, SLI retained Goodrich, a sole proprietorship with its only place of business in New Milford, Connecticut, to broker the sale of the Airplane. Goodrich placed advertisements in several media with national and international distribution, and never specifically targeted either the Texas market generally or AGC in particular.
AGC is a Delaware corporation with its principal place of business in Houston, Texas.
AGC's President, Mr. Connie Wood ("Wood"), initiated the first contact with Goodrich regarding the Airplane on December 18, 1995 when Wood was in Europe. This correspondence was faxed from Wood in Europe to Goodrich in Connecticut and, though the address appearing in the letterhead was AGC's Texas address, requested that Goodrich reply by fax to AGC's office in Germany. Wood indicated in the letter that AGC was inquiring about the Airplane on behalf of a trust client, subsequently identified as Bernard Van Milders B.V., of Antwerpen, Belgium ("Van Milders"). Goodrich responded to this initial inquiry by fax directed to AGC's European office. When Goodrich could not complete the transmission, however, he faxed the response to AGC's Houston office, whereupon the document was retransmitted to Wood in Europe. The address above the salutation in Goodrich's response was AGC's Houston address.
On December 24, 1995, Goodrich received AGC's initial offer to purchase the plane on behalf of Van Milders. The offer was signed by Wood in Europe, faxed to Goodrich in Connecticut, and though AGC's Houston address again appeared in the stationery's letterhead, the offer instructed that any response be directed to AGC's European office. Goodrich acknowledged his receipt of the offer the following day by fax. This correspondence, and the subsequent faxes negotiating various terms of the agreement, were routed to AGC's European office through Texas and listed AGC's address as Texas. Goodrich communicated with SLI personnel in Pennsylvania during this period of negotiations.
On December 27, 1995, Goodrich received the fax from AGC that is the alleged Contract sued on in this action. This offer, like the one before it, was signed by Wood in Europe, faxed to Goodrich in Connecticut, and printed on stationery with AGC's Houston address in its letterhead, but once more instructed that Goodrich's response be directed to AGC's European office. Goodrich signed the Contract on behalf of SLI and faxed it back to Wood in Europe again via Houston. The Contract did not contain a choice of law provision, nor did it specify a venue in which claims relating to it were to be brought, and no performance called for in the Contract was to take place in Texas. The only place specified in the letter is Oklahoma City, Oklahoma, where AGC was to deposit $ 50,000 upon SLI's acceptance of its offer. Wood was in Houston when he caused this deposit to be escrowed.
Wood returned to the United States from Europe on December 28, 1995, but did not arrive in Texas until January 2, 1996. Shortly thereafter, discussions commenced regarding the Contract's provision for a pre-purchase inspection of the Airplane at AGC's "expense and discretion .... to be conducted at a disinterested third party maintenance facility." (Contract, P 4, 5). After several phone conversations and faxes, Goodrich (still in Connecticut) and Wood (now in Texas) agreed that a CESSCOM Phase V inspection would be conducted at the AMR Combs facility in Birmingham, Alabama. Wood then left for Alabama on January 6, 1996, and returned to Europe one week later.
Disputes concerning the scope and duration of the pre-purchase inspection prompted SLI to terminate the Alabama inspection and have the plane reassembled and flown to Pennsylvania for an inspection alleged by Defendants to comport "with the terms of the alleged letter agreement and intentions of the parties." Defs.' Mem. at 8. After the Pennsylvania inspection was completed, Goodrich informed AGC that the Airplane was available for purchase under the terms of the December 27 letter, plus costs of inspection, but AGC did not tender the remainder of the purchase price. Defendants subsequently had "various communications" with AGC's Texas office--specifically, Mr. Walker, its attorney and Vice President--regarding the Airplane. The dispute that ensued resulted in this instant lawsuit.
This action was filed in Texas state court on April 10, 1996, and removed to the United States District Court for the Southern District of Texas, Houston Division, pursuant to a Notice of Removal filed May 24, 1996. After Defendants filed a Motion to Dismiss for Lack of Personal Jurisdiction, and the Court denied Plaintiff's Motion to Continue Submission of Defendants' Motion, AGC filed an Unopposed Motion to Transfer Venue. This action was transferred to this Court pursuant to an order dated July 22, 1996, though ...