in Re: Am Re Syndicate, Inc. and Shevawn Barder ( 2022 )

DENY and Opinion Filed February 23, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00358-CV
IN RE AM RE SYNDICATE, INC. AND SHEVAWN BARDER, Relators
Original proceeding from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-21-00683-D
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Carlyle
Opinion by Justice Myers
Relators Am Re Syndicate, Inc. and Shevawn Barder petition this Court for a
writ of mandamus ordering the trial court to grant relators’ motion to dismiss this
cause because, they contend, a forum- or venue-selection clause in a contract
requires venue for the underlying lawsuit in Oklahoma County, Oklahoma. We have
reviewed the petition for writ of mandamus, the response of the real party in interest,
and the record presented by the parties. We deny the petition for writ of mandamus.
Mandamus relief is available to enforce forum-selection agreements because
there is no adequate remedy by appeal when a trial court abuses its discretion by
refusing to enforce a valid forum-selection clause that covers the dispute. In re Int’l
Profit Assocs., Inc., 274 S.W.3d 672, 675 (Tex. 2009) (orig. proceeding) (per
curiam). We review the trial court’s decision whether to enforce a forum-selection
clause for an abuse of discretion, deferring to the trial court’s factual determinations
if they are supported by the evidence, but we review the trial court’s legal
determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex.
2009) (orig. proceeding). As there were no findings of fact or conclusions of law
here, we infer that the trial court made all fact findings that have support in the record
and are necessary to uphold the ruling. Moki Mac River Expeditions v. Drugg, 221
S.W.3d 569, 574 (Tex. 2007).
Real party in interest sued relators alleging relators breached a contract,
committed fraud because they entered into the contract with no intent to perform,
tortious interference with contract, and that relators conspired to commit those torts.
The contract real party alleged relators breached contained a forum- or venue-
selection clause stating:
This Agreement has been made and entered into in the State of Oklahoma
and the Agreement shall be subject to and construed under the laws of the
State of Oklahoma. This agreement shall be deemed performable at the
Company’s administrative office in Oklahoma City, Oklahoma, and it is
agreed that the venue of any controversy arising out of this Agreement, or
any breach thereof, shall be in Oklahoma County, Oklahoma.
(Emphasis added.)
Relators moved to dismiss the suit, arguing exclusive venue for the suit lay in
Oklahoma because the controversy arose out of that contract. Relators were not
parties to the contract, but Am Re was the agent of one of the parties, GIC, Inc., and
Barder was the CEO of Am Re. Relators argued that because real party sued them
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for breach of contract and for fraud based on having no intent to perform the contract,
the controversy arose out of the contract, and real party was estopped to deny that
relators were parties to the contract. Real party argued that the controversy did not
arise out of the contract, that relators lacked capacity and standing to assert the
forum- or venue-selection clause, and that the clause was not enforceable because it
was not mandatory. The trial court denied relators’ motion to dismiss, and relators
brought this petition for writ of mandamus.
While the petition for writ of mandamus was pending in this Court, real party
filed its second amended petition in the trial court. The second amended petition no
longer alleges breach of contract or fraud. Instead, it alleges relators committed
misappropriation of trade secrets, tortiously interfered with contracts and business
relations by driving away real party’s customers and by telling real party’s customers
to cancel or not renew their policies, and conspired to commit those torts.
Additionally, Am Re’s principal, GIC, Inc., who is a party under the contract,
revoked Am Re’s agency authority. Real party filed a motion in the trial court
requesting that relators be compelled to show authority to represent GIC, Inc. The
trial court granted that motion and ruled, “AM RE has no authority or capacity to act
for GIC as of November 18, 2021.” Real party argues that under the second
amended petition, the controversy does not arise out of the contract and relators have
no standing to assert the forum- or venue-selection clause in the contract.
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We agree with real party that the controversy does not arise out of the contract
and that relators lack capacity and standing to assert the forum- or venue-selection
clause. We deny the petition for writ of mandamus.
/Lana Myers/
210358f.p05 LANA MYERS
JUSTICE
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