Greenbelt Electric Cooperative v. Barry Sanders and Lynn Mills ( 2002 )

NO. 07-01-0249-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 14, 2002

______________________________



GREENBELT ELECTRIC COOPERATIVE, APPELLANT

V.

LYNN MILLS AND BARRY SANDERS, APPELLEE



_________________________________

FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

NO. 10,372-A; HONORABLE GRAINGER W. McILHANY, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

ON AGREED MOTION TO DISMISS

On original submission, we affirmed a judgment in favor of appellees Lynn Mills and Barry Sanders. Appellant Greenbelt Electric Cooperative then filed a motion for rehearing. While that motion was pending, the parties reached a settlement and have now filed an agreed motion to dismiss with prejudice. We withdraw our original opinion and judgment of March 20, 2002 and, in lieu thereof, grant the motion to dismiss the appeal.

Without passing on the merits of the case, the appeal is hereby dismissed with prejudice. Tex. R. App. P. 42.1(a). Having dismissed the appeal at the request of both parties, no further motion for rehearing will be entertained and our mandate will issue forthwith. Pursuant to the motion, all costs are to be assessed against the party incurring them. Our dismissal of the case renders the pending motion for rehearing moot.

Don H. Reavis

Justice

Do not publish.

t had been rendered against him until after the judgment was signed. Jackson v. Biotectronics, Inc., 937 S.W.2d 38, 42 (Tex.App.--Houston [14th Dist.] 1996, no writ). A direct attack on the judgment by writ of error must (1) be brought within six months after the judgment was signed, (2) by a party to the suit, (3) who did not participate in the actual trial, and (4) the error complained of must be "apparent from the face of the record." Tex. Civ. Prac. & Rem. Code Ann. § 51.013 (Vernon 1986); Tex. R. App. P. 26.1(c) and 30; General Electric v. Falcon Ridge Apts., 811 S.W.2d 942, 943 (Tex. 1991). Lowing's first issue is sustained.

By his second issue, focusing on the forum selection clause, Lowing contends that the trial court erred in rendering judgment. We disagree.

Standard of Review

A trial court's decision whether a forum selection clause is valid and/or should be enforced is reviewed for an abuse of discretion. My Café CC, Ltd. v. Lunchstop, Inc., 107 S.W.3d 860, 864 (Tex.App.-Dallas 2003, no pet.); Barnett v. Network Solutions, Inc., 38 S.W.3d 200, 203 (Tex.App.-Eastland 2001, pet. denied). An abuse of discretion occurs only if the trial court acts without reference to any guiding rules or principles, i.e., if its decision is arbitrary and unreasonable. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003); Russell Stover Candies, Inc. v. Elmore, 58 S.W.3d 154, 157 (Tex.App.-Amarillo 2001, pet. denied). Because this is a restricted appeal, any error in not enforcing the forum selection clause must be apparent from the face of the record to support the reversal of the judgment. Gold v. Gold, 111 S.W.3d 799, 803 (Tex.App.-Dallas 2003), rev'd on other grounds, 145 S.W.3d 212 (Tex. 2004) (citing Brown v. Brookshires Grocery Store, 10 S.W.3d 351 (Tex.App.-Dallas 1999, pet. denied).

Forum selection clauses will be enforced in Texas if (1) the parties have contractually consented to submit to the exclusive jurisdiction of another state and (2) the other state recognizes the validity of such provisions. See My Café CCC, Ltd., 107 S.W.3d at 864. In support of his contention that New York recognizes forum selection clauses, Lowing suggests that this factor is satisfied because the contract was prepared by New York counsel who were familiar with New York law. However, he does not make any citation to the record where the author of the contract was identified. Moreover, Lowing's argument is unsupported by citation of any legal authority demonstrating that New York recognizes the validity of the forum selection clause, particularly where neither party resides or does business in New York and the amount in controversy is less than $20,000. As an appellate court we are not required to conduct research to find authority supporting an essential element of Lowing's argument. In Re Moody, 93 S.W.3d 928, 929 (Tex.App.--Amarillo 2003, no pet.). Issue two is overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Johnson, C.J., concurring.

NO. 07-03-0393-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 4, 2005

______________________________



REUBEN LOWING AND ORLIN NORRIS, JR., APPELLANTS

V.

DARYL WILLIAMS, APPELLEE



_________________________________

FROM THE 72^ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-521,472; HONORABLE J. BLAIR CHERRY, JR., JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.  

CONCURRING OPINION

Appellant Lowing's second issue urges that the forum selection clause at issue deprived the trial court of jurisdiction. Enforcement of forum-selection clauses do not, however, deprive Texas courts of jurisdiction. See General Resources Org., Inc. v. Deadman, 907 S.W.2d 22, 27-8 (Tex.App.-San Antonio 1995, writ denied). See, also, The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-13, 92 S. Ct. 1907, 1914. Thus, even though Williams did not plead or prove the unreasonableness, unjustness, or invalidity of the clause, as was his burden if he contested the clause, see In re Automated Collection Technologies., Inc., _ S.W.3d _, _ (Tex. 2004); In re AIU Ins. Co., _ S.W.3d _, _ (Tex. 2004) (Texas courts must specifically enforce forum-selection clauses unless the party opposing enforcement clearly shows that enforcement would be unreasonable and unjust, or that the clause is invalid for some reason such as fraud or overreaching), Lowing's issue must be overruled. See Texas Nat'l Bank v. Karnes, 717 S.W.2d 901, 903 (Tex.1986).

I concur in the result reached by the majority.

Phil Johnson

Chief Justice

1. Notice of appeal was filed by counsel for Reuben Lowing and Orlin Norris, Jr., but no brief was filed on behalf of Orlin Norris, Jr.

2. See Tex. R. App. P. 30, formerly Tex. R. App. P. 45.