in Re Emex Holdings Llc ( 2012 )


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  •                               NUMBER 13-11-00145-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    IN RE EMEX HOLDINGS L.L.C.
    On Petition for Writ of Mandamus.
    DISSENTING MEMORANDUM OPINION
    Before Justices Garza, Vela, and Perkes
    Dissenting Memorandum Opinion by Justice Garza
    I agree with most of the Court’s analysis but disagree with the uncompromising
    nature of the Court’s ultimate directive to the trial court. In particular, I disagree with the
    Court’s failure to apply the approach taken by the Texas Supreme Court in Henderson
    v. Floyd, 
    891 S.W.2d 252
    (Tex. 1995) (orig. proceeding). As the majority notes, the
    Henderson Court noted that the real party in interest in that case, Reed, raised factual
    issues for the first time on appeal which, if proven correct, would have had ramifications
    on the outcome of the underlying motion. See 
    id. at 254–55.
    The Court properly
    concluded that the real party in interest’s contention1 “should be addressed in the first
    instance by the district court” and noted that the trial court is not precluded “from
    considering changed circumstances which would cast relator’s motion . . . in a different
    light.” 
    Id. at 255.
    The Henderson Court therefore conditioned its granting of mandamus
    relief on the absence of such changed circumstances. 
    Id. I would
    adopt that approach in the instant case. The Naims contend that the
    Mexican appellate court rendered a final judgment holding that rescission is
    unavailable—and that this judgment was announced after the trial court made the
    challenged ruling which denied enforcement of the forum selection clause. The Naims
    further contend that, as a result of the Mexican court’s action, they amended their
    petition in the trial court to remove claims that involve the “construction of” or
    “compliance with” the Joint Venture Agreement, the Modification Agreement, or the
    Pledge Agreement. Essentially, the Naims are arguing that new facts have come to
    light since the trial court made its ruling that would have an effect on the merits of that
    ruling. This is precisely analogous to the situation in Henderson. Yet, the Court today
    rigidly directs the trial court to enforce the forum selection clause without allowing it to
    consider relevant changed circumstances.
    Of course, I agree with the “fundamental tenet of appellate practice” which
    requires us to review the actions of the trial court based only on the record before the
    trial court at the time it made its ruling.                See, e.g., Beard v. Comm’n for Lawyer
    Discipline, 
    279 S.W.3d 895
    , 902 (Tex. App.—Dallas 2009, pet. denied) (citing Methodist
    1
    The precise substance of Reed’s contention—that the relator waived his right to disqualify
    counsel by failing to move to stay the proceedings while the motion for rehearing was pending, 
    891 S.W.2d 252
    , 254 (Tex. 1995) (orig. proceeding)—is irrelevant here. The important fact is that Reed
    raised a factual issue that (1) arose too late to have been brought to the attention of the trial court or to be
    considered by the appellate court and (2) which could have impacted the merits of the underlying motion.
    2
    Hosps. v. Tall, 
    972 S.W.2d 894
    , 898 (Tex. App.—Corpus Christi 1998, no pet.)). But I
    do not see how this tenet would be violated by making our directive contingent on the
    absence of changed circumstances that would, in the words of Henderson, “cast [the
    motion to enforce the forum-selection clause] . . . in a different light.”2 I disagree that
    such an approach would be akin to “asking the trial court to hit a moving target”; it would
    merely allow the trial court to make a decision based on all the available facts. The
    Court’s failure to take that approach in this case binds the trial court to make its decision
    on old, possibly obsolete facts, and thereby unnecessarily risks a miscarriage of justice.
    I respectfully dissent.
    DORI CONTRERAS GARZA,
    Justice
    Delivered and filed the
    21st day of June, 2012.
    2
    Similarly, I do not believe that the Texas Supreme Court violated this “fundamental tenet of
    appellate practice” in Henderson by conditioning its directive on the absence of changed circumstances
    that would “cast relator’s motion . . . in a different light.” 
    Id. at 255.
    3