in Re SGL Carbon Corporation and SGL Carbon, LLC ( 2001 )

In re SGL Carbon Corporation and SGL Carbon LLC

  IN THE

TENTH COURT OF APPEALS

No. 10-01-55-CV

IN RE SGL CARBON CORPORATION

AND SGL CARBON, LLC

Original Proceeding

O P I N I O N

      SGL Carbon Corporation and SGL Carbon, LLC (“Relators”), bring this mandamus seeking us to compel the trial court to grant their motion to dismiss based on the existence of a contractual forum-selection clause. The clause designates the courts of North Carolina as the exclusive forum for adjudicating disputes between the parties.

      The Supreme Court recently declined to grant a mandamus petition in which the relators sought to have a contractual forum-selection clause enforced. See In re GNC Franchising, Inc., 22 S.W.3d 929 (Tex. 2000) (orig. proceeding) (Hecht, J., dissenting). There is no majority opinion. Justice Hecht, joined by Justice Owen, however, dissented from the denial of the petition in a written, published opinion. Id.

      There are bases on which we could distinguish the present case from GNC. The primary distinction lies in the validity of the clause in dispute. A forum-selection clause is presumed valid if: (1) the parties agreed to submit their disputes to the exclusive jurisdiction of another state, and (2) the other state also enforces forum-selection clauses. North Carolina, the forum named in the disputed clause, does enforce valid forum-selection clauses. See Perkins v. CCH Computax, Inc., 423 S.E.2d 780, 784 (N.C. 1992) (“Recognizing the validity and enforceability of forum-selection clauses in North Carolina is consistent with the North Carolina rule that recognizes the validity and enforceability of choice of law and consent to jurisdiction provisions.”). In GNC, there was some dispute about whether Pennsylvania, the forum of choice, would enforce clauses similar to the one found in the GNC franchising agreement. In re GNC, 22 S.W.3d at 931. Thus, there could be no presumption of validity. That alone could have been enough to deny the petition.

      Although we could distinguish GNC, we decline to do so. Without the guidance of a majority opinion, we can only surmise the basis for the denial of the petition. Because a majority of the Supreme Court has denied a petition for writ of mandamus where the trial court refused to enforce a forum-selection clause, we likewise deny this petition.

      The petition for writ of mandamus is denied.

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Writ denied

Opinion delivered and filed February 14, 2001

Do not publish