“If” the forum selection clause was enforceable . . .

The parties’ dispute resolution provision said: “If the Dispute cannot be resolved by Customer and Supplier in accordance with Clause 32.1 [the Mandatory ADR Process], the Parties irrevocably agree that the Courts of England shall have exclusive jurisdiction.” Acknowledging that a writ of mandamus is potentialy available to enforce a forum selection clause, the Fifth Court denied the petitioners’ application here. Procedurally, “[b]oth parties presented evidence as to whether they engaged in the mandatory ADR process.” Legally, “The use of the term ‘if’ connotes a condition precedent that conditions performance rather than a covenant or promise.” Accordingly “[u]nder this record, the trial court did not clearly fail to analyze or apply the law correctly and, thus, did not abuse its discretion.” In re Atos IT, No. 05-17-00952-CV (Aug. 18, 2017) (mem. op.)

See you in Germany –

german flagA dispute arose in Dallas among Theilert Aircraft, a German maker of aircraft engine parts; Bruno Kübler, its “insolvency adminstrator” under German law; Superior Air Parts, a former customer of Theilert; and Technify Motors, the purchaser of Theilert’s assets in the Germany insolvency proceeding. Kübler sought a writ of mandamus to compel enforcement of a forum selection clause in the Theilert-Technify sales agreement (“This Agreement is subject to the laws of the Federal Republic of Germany. To the extent legally permitted, exclusive place of jurisdiction is the seat of the Insolvency Debtor [in Germany].”) The Fifth Court agreed, finding that (1) the “extent legally permitted” language did not make the clause permissive instead of mandatory, (2) the claims between Technify and Kübler arose from the sales agreement, and (3) the potential for parallel litigation between Superior and Technify in Dallas did not overcome the policy in favor of enforcing a valid, relevant forum provision. In re: Kübler, No. 05-16-01443-CV (Aug. 4, 2017). (The Court also addressed and rejected a theoretical issue about the enforceability of a similar clause under German law, finding it irrelevant under the current framework used in Texas courts.)

Forum Selection Clause Sends Texas Property Damage Claim to New York

Chandler Management sued First Specialty Insurance after the insurer denied coverage of a claim for wind and hail damage at a Dallas apartment complex managed by Chandler. The insurer moved to dismiss based on a forum selection clause in the policy that provided for exclusive jurisdiction in New York. The Dallas Court of Appeals affirmed the trial court’s dismissal order, without prejudice to refiling in New York. The Court found no error in the trial court’s decision to dismiss the claims against two additional defendants because they had expressly agreed to the insurer’s motion and because the claims against them were also based on the insurance contract. The insurer also established that the policy was procured through a licensed agent, which allowed First Specialty to issue surplus lines insurance in Texas (and therefore allowed it to enforce the contract against its insured). The Court shrugged off a number of claimed failures of the policy under the Insurance Code, holding that noncompliance with those provisions did not affect enforcement of the contract because nothing showed that they were “material and intentional” violations. Finally, the Court rejected Chandler’s arguments that the forum selection clause was overreaching and against public policy.

Chandler Mgmt. Corp. v. First Specialty Ins. Corp., No. 05-13-01044-CV

Ignore That Forum Selection Clause We Drafted . . .

Benica Brown’s former employer, Digital Intelligence Systems (“DIS”) sued her in Dallas county, where she was employed in DIS’s Dallas office, even though Brown’s employment agreement with DIS  (which DIS drafted) specified Virginia as the exclusive forum to resolve any disputes between the parties.  The Court conditionally granted mandamus relief, holding that the trial court abused its discretion when it refused to dismiss the action based on the forum selection clause in the employment agreement.  The Court specifically rejected DIS’s argument that Virginia would be an inconvenient forum because DIS “certainly could have foreseen that it would be required to litigate against Brown in Virginia, especially given that it drafted the employment agreement containing that requirement and required Brown to sign it.”

In re Brown

Court Enforces Forum Selection Clause

The parties entered an operating agreement, which contained a forum selection clause that required them to submit to jurisdiction in Oregon. CKH initiated litigation related to the operating agreement in Texas. The trial court granted appellees motion to dismiss on venue finding that CHK agreed to venue in Oregon, and CKH appealed.

The Court of Appeals affirmed for three reasons. First, the Court found that appellees did not waive the court’s jurisdiction to rule on its motion to dismiss based on a forum selection clause simply because the trial court denied their special appearance. Second, the Court held that whether CKH’s claims are subject to arbitration is irrelevant to the forum selection clause. The operating agreement requires parties to submit to jurisdiction in Oregon “provided such claim is not required to be arbitrated.” CKH initiated a lawsuit rather than filing arbitration; the Court found such “action” to be controlled by the forum selection clause. Further, the parties agreed to arbitration in Oregon, which makes it clear that the parties envisioned all claims–whether brought before a court or an arbitration panel–be filed in Oregon. Third, the Court held that a non-signatory was entitled to rely on and enforce the forum selection clause because the claims against the non-signatory are substantially interdependent on the claims against the signatory.

CKH Family LP v. MGD-CCP Acquisition

Click Here for Forum Selection Clause

Bob Montgomery Chevrolet, a car dealership doing business entirely in Kentucky, entered into an agreement with Dent Zone, a dent repair service, to allow Dent Zone to operate out of Montgomery’s dealership in exchange for a cut of Dent Zone’s take.  After some negotiation, the parties signed an agreement that included the following language: “Additional benefits, qualifications and details of the [relationship] are available for your review at our website:  http//.linxmanager.com./pdf.CRCTermsconditions.pdf.”  The terms and conditions on that website included a minimum six-month contractual term, a Texas choice-of-law provision, and a forum-selection clause requiring any suit between the parties to be brought in Dallas, Texas.  One month after signing the agreement, Montgomery ended its relationship with Dent Zone.  Dent Zone sued Montgomery for breach of contract in Dallas, and Montgomery filed a special appearance, which the trial court denied.

On appeal, Montgomery insisted that the terms and conditions linked to in the agreement were not part of the contract, while Dent Zone argued that the terms were incorporated by reference.  The Court of Appeals agreed with Montgomery, explaining that for a contract to incorporate another document by reference that contract must demonstrate the parties’ intent to incorporate all or part of the referenced document.  Turning to the language of the agreement, the Court found that the phrase “Additional benefits, qualifications and details of the [relationship] are available for your review at our website” was informative only and   does not suggest that the parties intended the terms and conditions to become part of their agreement.

Bob Montgomery Chevrolet v. Dent Zone Cos.