JEM AUTOMATICS TOOLING INC v. DEWALCH TECHNOLOGIES INC (2026)

OPINION

After DeWalch Technologies, Inc. filed the present lawsuit against JEM Automatics & Tooling Inc. for breach of contract, breach of warranty, and deceptive trade practices in a Texas district court, JEM filed a special appearance, contesting whether the trial court had personal jurisdiction over it. The trial court denied the special appearance, and JEM then filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(7); Tex. R. Civ. P. 120a. In four issues, JEM contends that the trial court did not have specific personal jurisdiction over it. We affirm.

Background

JEM is a Michigan corporation with its offices located near Detroit. DeWalch is a Texas corporation, headquartered in Houston. In February 2023, DeWalch purchased a machine from JEM for $70,000, specifically a reconditioned 3/4” RA-8 Acme Gridley Screw Machine and related tooling. Neither party asserts JEM solicited DeWalch's business in Texas, and according to the purchase order, the machine was sold “FOB” Michigan, with DeWalch paying the freight charges to transport the machine to Houston and DeWalch owning the machine while in transit.¹

According to a declaration by Binz DeWalch, DeWalch's president, before purchasing the machine, he negotiated certain changes to JEM's standard warranty with JEM's salesperson Steve Friend because Binz

wanted repairs and replacements to be performed timely in DeWalch's Houston facility, and ․ did not want DeWalch to have to bear the cost of JEM personnel travelling to DeWalch's facility in Houston to perform warranty work or for DeWalch to bear the cost or delay of reshipping a very heavy and bulky piece of equipment back to JEM's facility in Michigan for repairs.

The resulting written warranty provided, among other things, that the machine was warranted for 90 days after being placed into operation to be “free from defects in workmanship and materials, ․ in good and serviceable condition, and [capable of operating] substantially in accordance with ․ the corresponding standard documentation issued by the Manufacturer.” The warranty further provided that

Seller will ․ at its expense and discretion, repair and or replace any components or Equipment necessary to bring the Equipment into good and serviceable condition as Warranted herein․ Labor and all travel expenses for repairs and replacement of Equipment warranted herein will be provided by Seller at Sellers․ expense Customer will make a reasonable effort to assist with simple replacements if the labor to do so can be performed by an unskilled mechanic and requires less than 1 man day. Seller will make and provide such repairs or replacements in a timely manner so as put the Equipment into proper working condition as warranted herein.

Any Repaired or Replaced Equipment shall be warranted with the same terms of this Warranty for the same warranty period as the original Warranty beginning on the date that the Repaired or Replacement Equipment arrives at Customer[']s facility (if Customer agrees to install the Repaired or Replacement Equipment) or as soon as the Replacement Equipment is installed or Repaired by Seller if Seller does the Repair or Replacement at Customer[']s facility.

Binz said that he informed Friend that this warranty was a primary reason that DeWalch purchased the machine from JEM.

After receiving the machine in Houston and attempting to operate it, DeWalch allegedly discovered numerous problems—including missing and damaged parts—that rendered the machine unusable. A series of emails and telephone calls then ensued between JEM personnel in Michigan and DeWalch personnel in Texas, which appeared aimed at resolving the problems DeWalch was reporting with the machine. The emails indicate that JEM sent numerous replacement parts to Texas at DeWalch's request, but the emails do not suggest that any JEM personnel ever traveled to Texas to work on the machine or meet with DeWalch.

Ultimately, a DeWalch employee sent an email to Friend requesting, pursuant to the original purchase order and warranty, “to schedule the immediate repair or replacement of the machine and tooling purchased[, or i]f an acceptable solution is not immediately provided, ․ the return of the machine and a full payment refund.” The employee asserted that DeWalch had “made several requests for the missing items and replacement of damaged tooling with little or no results,” and he concluded that “[i]f Jem chooses to repair the machine and replace the missing and damaged equipment, [DeWalch] need[ed JEM] to provide ․ a schedule that will get the work done by a mutually agreed deadline, without delay to meet the terms of the purchase.”

Moreover, Binz stated in his declaration that

DeWalch fully expected and was told verbally by Steve Friend that JEM's repair personnel would travel to DeWalch's facility in Houston, Texas upon request to perform repair and replacement warranty work as necessary under the terms of the warranty as the parties had agreed. Although DeWalch had requested JEM to honor its warranty and perform repairs and replacement warranty work at its Houston facility, JEM failed to do so, and refused to arrange to send any personnel to Houston to perform warranty repairs necessary to put the Machine into operational condition.

DeWalch subsequently filed the present lawsuit in April 2024, alleging breach of contract, breach of warranty, and deceptive trade practices. JEM filed a special appearance, contending the trial court lacked personal jurisdiction over JEM due to insufficient contacts with the State of Texas. JEM attached a declaration to its special appearance from its owner and chief executive officer, Anthony Garofalo, as well as copies of the purchase order and a quote for the machine. In his declaration, Garofalo stated that JEM is not registered to do business in Texas, has no agent for service of process in Texas, owns no assets in Texas, and does not pay any Texas taxes. He further averred that JEM does not have any Texas specific advertising, distribution systems, or regular customers. And, he stated he was unaware of any other time JEM had sold equipment to a party located in Texas. He explained that while JEM maintains an informational website, no orders can be placed directly through the website. In its response to the special appearance, DeWalch explained that it was asserting the trial court possessed specific personal jurisdiction over JEM but was making no claims regarding general personal jurisdiction. DeWalch attached Binz's declaration, the standard and revised warranties, and numerous emails to its response. The trial court denied the special appearance.

Governing Law

Whether a court has personal jurisdiction over a defendant is a question of law we review de novo. Moncrief Oil Int'l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013). When, as here, the trial court does not enter findings of fact or conclusions of law, we imply all facts necessary to support the trial court's ruling that are supported by the evidence. Id. The ruling may be challenged for legal and factual sufficiency. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).

When examining a legal-sufficiency challenge, we review 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, 822 (Tex. 2005). We credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Id. at 827. Evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the conclusion under review. Id. In a factual-sufficiency challenge, we consider and weigh all the evidence, both supporting and contradicting the finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). We will set aside a finding for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 407.

Texas courts may exercise personal jurisdiction over a nonresident if “(1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with federal and state constitutional due-process guarantees.” Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). The Texas long-arm statute extends Texas courts' personal jurisdiction as far as the federal constitutional requirements of due process will permit. BMC Software, 83 S.W.3d at 795. We therefore look to both Texas and federal precedent in assessing personal jurisdiction over a nonresident. Id.

Personal jurisdiction over a nonresident is constitutional when two conditions are satisfied: (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. Id. (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Minimum contacts are sufficient for personal jurisdiction when the nonresident purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Moki Mac, 221 S.W.3d at 575. In a purposeful-availment inquiry, (1) only the defendant's contacts with the forum are relevant, not the unilateral activity of another party or a third person; (2) the contacts relied on must be purposeful rather than random, fortuitous, or attenuated; and (3) the defendant must seek some benefit, advantage, or profit by “availing” itself of the jurisdiction. Id. The analysis contemplates the quality and nature of the contacts, not the quantity. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 339 (Tex. 2009). At its core, the purposeful-availment analysis seeks to determine whether a nonresident's conduct and connection to a forum are such that it could reasonably anticipate being haled into court there. Moncrief Oil, 414 S.W.3d at 152.

A defendant's contacts can vest a court with either specific or general jurisdiction. BMC Software, 83 S.W.3d at 795–96. In determining whether specific jurisdiction exists—the only question in the present case—the minimum-contacts analysis focuses on the relationship between the defendant, the forum, and the litigation. Moki Mac, 221 S.W.3d at 575–76. Specific jurisdiction is established if the defendant's alleged liability arises out of, or is related to, an activity conducted within the forum. Id. at 576; BMC Software, 83 S.W.3d at 796. For a nonresident defendant's forum contacts to support an exercise of specific jurisdiction, there must be a substantial connection between those contacts and the operative facts of the litigation. Moki Mac, 221 S.W.3d at 585.

In a special appearance, the parties bear shifting burdens. “[T]he plaintiff bears the initial burden to plead sufficient allegations to bring the nonresident defendant within the reach of Texas's long-arm statute.” Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010). “Once the plaintiff has pleaded sufficient jurisdictional allegations, the defendant filing a special appearance bears the burden to negate all bases of personal jurisdiction alleged by the plaintiff.” Id. “Because the plaintiff defines the scope and nature of the lawsuit, the defendant's corresponding burden to negate jurisdiction is tied to the allegations in the plaintiff's pleading.” Id. A defendant can negate jurisdiction on either a factual or a legal basis. Id. at 659. To negate jurisdiction on a factual basis, the defendant must “present evidence that it has no contacts with Texas, effectively disproving the plaintiff's allegations.” Id. To negate jurisdiction on a legal basis, a defendant may show that even if the plaintiff's alleged facts are true, (1) the evidence is legally insufficient to establish jurisdiction; (2) the defendant's contacts with Texas do not amount to purposeful availment; (3) for specific jurisdiction, the plaintiff's claims do not arise from the defendant's contacts; or (4) the exercise of jurisdiction would offend traditional notions of fair play and substantial justice. Id. If the nonresident defendant manages to negate the pleaded bases for personal jurisdiction, the burden shifts back to the plaintiff to show that the court has personal jurisdiction over the defendant. Turman v. POS Partners, LLC, 541 S.W.3d 895, 900 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

Analysis

As mentioned above, JEM raises four issues in this appeal, all challenging the trial court's assertion of specific personal jurisdiction. Specifically, JEM argues that (1) DeWalch's purchase of the machine from JEM in Michigan did not establish the requisite “minimum contacts,” (2) the warranty did not expose JEM to personal jurisdiction in Texas, (3) JEM received no benefit from DeWalch's unilateral direction of the shipment of replacement parts for the machine to Texas, and (4) DeWalch's legal conclusion that the warranty was breached in Texas is not a proper jurisdictional fact. We will consider and address all of JEM's issues and arguments together as we review the trial court's holding that it possessed specific personal jurisdiction over JEM. We note at the outset that JEM only asserts that it did not have the requisite minimum contacts with Texas and does not question whether the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. See BMC Software, 83 S.W.3d at 795. We will therefore not address the latter issue in our analysis.

According to DeWalch, the relevant jurisdictional facts in this case include that JEM (1) contracted with and sold a machine to a Texas company, (2) engaged in a series of communications regarding problems that DeWalch immediately experienced with the machine, (3) shipped missing and replacement parts to Texas at its own expense, and (4) entered the purchase agreement that included a purposefully negotiated warranty, thus creating a continuing obligation for JEM to travel to Texas as needed to effect repairs. The fact JEM sold a machine to a customer in Texas is not alone sufficient to demonstrate specific personal jurisdiction, particularly since the sale was “FOB” Michigan, meaning DeWalch took ownership and possession of the machine in Michigan. See, e.g., Moki Mac, 221 S.W.3d at 577 (“[T]he mere sale of a product to a Texas resident will not generally suffice to confer specific jurisdiction upon our courts.”); see also Black's Law Dictionary 758, 781 (Deluxe 10th ed. 2014).² Contracting with and communicating with a customer, which happened to be in Texas, is also generally insufficient to support specific personal jurisdiction. See, e.g., Jutalia Recycling, Inc. v. CNA Metals Ltd., 542 S.W.3d 90, 98 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“The mere act of contracting with a Texas resident similarly does not give rise to specific jurisdiction in Texas: performance must be due in Texas.”); Peredo v. M. Holland Co., 310 S.W.3d 468, 474–75 (Tex. App.— Houston [14th Dist.] 2010, no pet.) (explaining that a nonresident does not establish minimum contacts with Texas simply by contracting with a Texas resident and engaging in communications with persons in Texas regarding the contract). And, while shipping missing and replacement parts to Texas is relevant to the analysis, this conduct alone is also unlikely to establish jurisdiction. See, e.g., Cirrus Design Corp. v. Berra, 633 S.W.3d 640, 652 (Tex. App.—San Antonio 2021, no pet.) (considering shipment of replacement parts to Texas as part of specific jurisdiction analysis along with other factors).

However, entering into a contract for sale that obligated JEM to perform warranty repairs in Texas changes the analysis, particularly when in combination with allegations and evidence that (1) such repairs were in fact needed and (2) JEM shipped missing and replacement parts to Texas at its own expense. See Moncrief Oil Int'l Inc. v. OAO Gazprom, 481 F.3d 309, 312 (5th Cir. 2007) (“[A] plaintiff's unilateral activities in Texas do not constitute minimum contacts where the defendant did not perform any of its obligations in Texas, the contract did not require performance in Texas, and the contract is centered outside of Texas.”); Citrin Holdings, LLC v. Minnis, 305 S.W.3d 269, 281 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“A contract calling for performance in Texas can support personal jurisdiction in appropriate circumstances.”); see also Tex. Civ. Prac. & Rem. Code § 17.042(1) (“[A] nonresident defendant does business in this state if the nonresident ․ contracts ․ with a Texas resident and either party is to perform the contract in whole or in part in this state.”); Cirrus Design, 633 S.W.3d at 652. Here, the contract contemplated further performance where the machine was located (Texas), and once the machine was sent to Texas, the contract became centered on Texas. See Moncrief Oil, 481 F.3d at 312.

JEM suggests that the warranty terms did not, in fact, obligate it to travel to Texas but only required it to cover the expense of correcting any legitimate issues, for example, by paying for DeWalch to ship the machine back to JEM's facility in Michigan for repairs. We disagree with this reading of the warranty. As set forth above, the warranty promises among other things that JEM “will ․ repair and replace any components or Equipment necessary to bring the Equipment into good and serviceable condition,” will “make and provide such repairs or replacements in a timely manner,” and will provide the “[l]abor and all travel expenses for repairs and replacements.” While the warranty also contained provisions for DeWalch to “make a reasonable effort to assist with simple replacements,” this did not somehow negate JEM's promise to travel to Texas to effect repairs as needed.

Thus, in entering the purchase agreement containing the warranty provision, JEM committed itself to an ongoing relationship with a party in Texas and performance within Texas as needed.³ The communication between JEM personnel and DeWalch personnel, as well as Binz's declaration, bear this out—warranty repairs were needed on the machine in Texas and JEM allegedly refused or failed to fulfill its promise. In short, JEM purposefully availed itself of the privilege of conducting activities within Texas and invoked the benefits and protections of the state's laws by agreeing to perform warranty services that were clearly contemplated to occur in the state. See Moki Mac, 221 S.W.3d at 575; see also Indus. Prod. Formulators of Am., Inc. v. Rockford Bus. Interiors, Inc., No. 03-14-00493-CV, 2015 WL 6119496, at *6 (Tex. App.—Austin Oct. 14, 2015, no pet.) (mem. op.) (holding evidence demonstrated nonresident defendant intended to establish the sort of “continuing relationships and obligations” with the Texas-based plaintiff that constituted purposeful availment of the forum, including future performance under warranty agreement).

JEM insists, however, that it was merely fortuitous that DeWalch was in Texas, and suggests the machine could have ended up in Louisiana or any other state. Along the same lines, JEM also points out that the warranty language did not explicitly obligate it to come to Texas as opposed to any other state where DeWalch might have taken the machine. While it is true that the warranty does not explicitly state that repair work will occur “in Texas,” JEM's argument ignores the factual reality that it was aware DeWalch was a Texas company and that the “heavy and bulky piece of equipment” was being shipped to and installed in Texas. There is no suggestion in the record that either party contemplated the machine would be located or operated anywhere but Texas. The machine is not like a vehicle or other highly mobile or moveable product; the record indicates it is in fact a large, heavy piece of industrial equipment that requires substantial set-up wherever it is installed. The parties therefore contemplated and understood that any warranty repairs would occur in Texas because that is where the machine itself would be. See, e.g., Glob. Energy Sols., LLC v. Kermit Pipeline, LLC, 657 S.W.3d 165, 176–77 (Tex. App.—El Paso 2022, no pet.) (discussing evidence that parties understood product was to be used exclusively in Texas). In other words, the evidence indicates JEM did more than merely foresee the machine would end up in Texas; it shipped replacement parts to Texas and agreed to effect repairs in Texas as needed. See CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996) (“Although foreseeability is a factor to consider in a minimum contacts analysis, foreseeability alone will not support personal jurisdiction. The defendant must take an action ‘purposefully directed toward the forum state’ to be subject to the jurisdiction of its courts.”) (quoting Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112 (1987)).

JEM next points out that it is undisputed no JEM personnel ever came to Texas to work on the machine. However, the fact JEM allegedly breached the agreement by refusing to come to Texas to effect repairs does not obviate the fact JEM obligated itself to do so when circumstances required. DeWalch, indeed, presented evidence that the circumstances so required, including emails between DeWalch personnel and JEM personnel and Binz's declaration. See Moncrief Oil, 481 F.3d at 312; Citrin Holdings, 305 S.W.3d at 281.

JEM also argues that it derived no benefit from its contacts with Texas. See Moki Mac, 221 S.W.3d at 575 (explaining that to constitute purposeful availment, the nonresident defendant must, among other things, seek some benefit, advantage, or profit by “availing” itself of the jurisdiction). But the evidence indicates that JEM did indeed benefit and profit by obligating itself to do repair work in Texas and sending replacement parts to Texas. As Binz indicated in his declaration, he specifically told JEM's salesman that the warranty was a primary reason DeWalch purchased the machine from JEM. And, Binz apparently specifically inserted and negotiated the part of the warranty that obligated JEM to travel to the location of the machine at JEM's expense. It therefore can be reasonably inferred that without this promise to travel to Texas to effect repairs as needed, JEM likely would not have made the sale. Moreover, as with any warranty promise, particularly one that a company fulfills by sending replacement parts, it enhanced JEM's reputation to show that it stands behind its products and its promises.

Further regarding the warranty, JEM suggests that the facts of the present case are substantially similar to those addressed in Warren Chevrolet, Inc. v. Qatato, No. 03-17-00298-CV, 2018 WL 6729855 (Tex. App.—Austin Dec. 21, 2018, no pet.) (mem. op.). We disagree. In Qatato, a Texas plaintiff bought a certified, pre-owned Camaro from an Illinois Chevrolet dealer and then arranged for a company to transport the vehicle to him in Texas. Id. at *1. Upon arrival, the vehicle reportedly failed its state inspection and had noticeable damage. Id. The plaintiff sought to return the vehicle and receive a refund, but the defendant seller refused. Id. On the question of specific personal jurisdiction, the Austin Court rejected the idea that communication between the parties was sufficient to establish the requisite minimum contacts. Id. at *3–4. More importantly for our purposes, the court also rejected the assertion that the car's warranty established minimum contacts with Texas, in large part because under the express terms of the warranty, “[a]ll GM dealers [we]re authorized to perform qualifying warranty repairs on Certified Pre-Owned vehicles” and the plaintiff could “contact a GM dealer in the United States, Canada or Mexico for warranty service.” Id. at *4. Thus, the Illinois dealer itself was not obligated to travel to Texas to fulfill the warranty. In contrast here, JEM obligated itself to travel to Texas to effect warranty repairs as needed. Qatato is therefore readily distinguishable.

Although not cited by JEM, we would also like to distinguish our prior opinion in C-Loc Retention Systems, Inc. v. Hendrix, 993 S.W.2d 473, 479 (Tex. App.—Houston [14th Dist.] 1999, no pet.), as the facts in that case contain substantial similarities to the present case but also a key difference. In C-Loc, the Texas plaintiff initiated contact with the Michigan defendant and purchased materials from the defendant FOB Michigan. Id. at 476. Once the material was installed in Texas, the plaintiff began to experience problems with it and complained to the defendant. Id. The defendant requested a different customer to travel to Texas to observe the installed materials and report back, but the customer was instructed not to advise the plaintiff regarding the installation. Id. The trial court denied the special appearance and we reversed. As in the present case, merely contracting with a Texas resident was not sufficient for specific jurisdiction, nor was shipping to Texas FOB Michigan, or communicating with the Texas plaintiff. See id. at 479. We further explained in C-Loc that the single, one-time act of sending someone to observe the installed product was not sufficient because it created only an “attenuated affiliation” with Texas. Id. In contrast here, the agreement to travel to Texas as needed to do warranty repair work is qualitatively different. See Retamco, 278 S.W.3d at 339 (explaining that it is the quality and nature of the contacts with the forum that matters, not the quantity). As discussed above, the warranty promise was an ongoing and potentially much more involved connection with Texas, requiring both travel to and repair work within the state. On that basis, C-Loc is distinguishable.

Next, JEM asserts that DeWalch's legal conclusion that the warranty was breached in Texas is not a proper jurisdictional fact. In other words, JEM suggests that DeWalch is attempting to prove the merits of its warranty claim in order to establish jurisdiction, and JEM argues this is not proper in the context of a special appearance, citing Wilmington Trust, N.A. v. Hsin-Chi-Su, 573 S.W.3d 845, 859 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (“[W]e do not consider the merits of a party's claims when analyzing personal jurisdiction.”). We disagree, however, that the fact of breach need be proven to establish specific jurisdiction in this case. As discussed at length above, by entering the purchase agreement with its warranty, JEM obligated itself to perform repairs in Texas as needed. That along with the shipment of replacement parts is sufficient to establish that JEM had the requisite minimum contacts with Texas. See Moki Mac, 221 S.W.3d at 574–75.

Lastly, JEM argues that the trial court did not have specific personal jurisdiction over it in this case because DeWalch's claims do not arise out of or relate to JEM's contacts with Texas. See, e.g., Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 8–9 (Tex. 2021) (“The minimum contacts necessary for specific jurisdiction are established if the defendant purposefully avails itself of the privilege of conducting activities in the forum state, and the suit ‘arise[s] out of or relate[s] to the defendant's contacts with the forum.’ ”) (internal citations omitted). But the connection here is clear. DeWalch's claims are that JEM breached the purchase and warranty agreement and engaged in deceptive trade practices by selling an unusable machine and then refusing to repair the machine to make it operational. Based on DeWalch's allegations, had JEM fulfilled its obligations and traveled to Texas to effect repairs, there would be no claims and no lawsuit. JEM's alleged liability is therefore closely related to its contacts with Texas. Accordingly, JEM should have anticipated being haled into a Texas court for allegedly breaching the party's agreement and committing related deceptive trade practices. See Moncrief Oil, 414 S.W.3d at 152.

Based on the foregoing analysis, we overrule JEM's four issues and affirm the trial court's order denying JEM's special appearance.

FOOTNOTES

1.   As used in the purchase order, “FOB” or “free on board” indicated that ownership and responsibility for the machine transferred from seller to buyer in Michigan, before the machine left for Texas. See Black's Law Dictionary 758, 781 (Deluxe 10th ed. 2014).

2.   But note that the use of “FOB” in a purchase agreement does not preclude a court from exercising personal jurisdiction over a nonresident defendant where other factors show that jurisdiction is proper. Cirrus Design Corp. v. Berra, 633 S.W.3d 640, 652 (Tex. App.—San Antonio 2021, no pet.) (citing Luv N' care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 471–72 (5th Cir. 2006)).

3.   Although the original warranty only extended for “ninety (90) days after the date the Equipment is placed in actual operation,” it should be noted both that the machine arguably was never placed in actual operation and the warranty extended to[a]ny Repaired or Replaced Equipment ․ with the same terms ․ for the same warranty period as the original Warranty beginning on the date that the Repaired or Replacement Equipment arrives at Customer[']s facility (if Customer agrees to install the Repaired or Replacement Equipment) or as soon as the Replacement Equipment is installed or Repaired by Seller if Seller does the Repair or Replacement at Customer[']s facility.Thus, the actual term of the warranty could and did stretch well beyond 90 days.

Maritza M. Antú Justice