Joseph Kuruvila and Jamie Joseph v. Wells Fargo Bank, National Association ( 2014 )

Opinion filed September 25, 2014
In The
Eleventh Court of Appeals
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No. 11-13-00333-CV
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JOSEPH KURUVILA AND JAMIE JOSEPH, Appellants
V.
WELLS FARGO BANK, NATIONAL ASSOCIATION, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 48,450-A
MEMORANDUM OPINION
In this interlocutory appeal, Appellants, Joseph Kuruvila and Jamie Joseph,
challenge an order in which the trial court denied their special appearance. We
affirm.
Wells Fargo Bank, National Association, sued Appellants as the guarantors
of a loan in which Abilene Townhomes & Condos, Inc. (ATC), a Texas
corporation, was the borrower. Appellants are president and vice president of ATC
and are Florida residents. When ATC entered into an agreement to purchase the
Courtyard Park Apartments in Abilene, Wells Fargo consented to the purchase and
to ATC’s assumption of the commercial multifamily note in the original principal
amount of $1,400,000. Kuruvila executed the “DEED OF TRUST, NOTE AND
OTHER LOAN DOCUMENT ASSUMPTION AND RELEASE AGREEMENT”
as president of ATC. The loan was nonrecourse. When ATC assumed the loan,
there remained an outstanding principal balance of $1,376,930.12.
Appellants executed a “GUARANTY OF RECOURSE OBLIGATIONS OF
BORROWER” in which they “absolutely and unconditionally guarantee[d] to
Lender the prompt and unconditional payment” of the entire debt in the event of
default, bankruptcy, and other circumstances. Appellants executed the Guaranty
Agreement as “Joseph Kuruvila, an individual” and as “Jamie Joseph, an
individual.” “As a further inducement to Lender to consent to Borrower’s
assumption of the Loan and in consideration thereof,” Appellants agreed to
“maintain a place of business or an agent for service of process in Texas,” to
“irrevocably submit to the nonexclusive jurisdiction of the courts of the State of
Texas,” and to “irrevocably waive any objection” to venue or to an inconvenient
forum. Additionally, the Guaranty Agreement provided that it “shall be deemed to
be a contract entered into pursuant to the laws of the State of Texas and shall in all
respects be governed, construed, applied[,] and enforced in accordance with
applicable federal law and the laws of the State of Texas, without reference or
giving effect to any choice of law doctrine.”
ATC eventually defaulted on the loan and filed for bankruptcy. When
Appellants refused to satisfy the debt, Wells Fargo instituted this suit. Appellants
filed a special appearance in which they claimed that they did not have any
contacts with Texas in their individual capacity other than the Guaranty Agreement
and that this was insufficient contact with Texas to confer jurisdiction. After a
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hearing, the trial court concluded that it had personal jurisdiction over the
nonresident defendants and denied the special appearance.
In a single issue on appeal, Appellants argue that the trial court erred in
denying their special appearance. Wells Fargo argues that the trial court had
jurisdiction over Appellants because Appellants agreed to it and because
Appellants were doing business in Texas. We agree with Wells Fargo that
Appellants consented to jurisdiction and that the trial court therefore had
jurisdiction.
Whether a court may exercise personal jurisdiction over a nonresident
defendant is a question of law that we review de novo. BMC Software Belg.,
N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). When, as here, the trial court
does not issue findings of fact and conclusions of law, we infer all facts necessary
to support the judgment that are supported by the record. Id. at 795. “The plaintiff
bears the initial burden of pleading sufficient allegations to bring a nonresident
defendant within the provisions of the long-arm statute.” Marchand, 83 S.W.3d at
793. The burden then shifts to the nonresident defendant to negate all bases for
personal jurisdiction. See id.
Parties may waive their personal jurisdiction rights and consent to
jurisdiction. Tri-State Bldg. Specialties, Inc. v. NCI Bldg. Sys., L.P., 184 S.W.3d
242, 248 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Consent may be
evidenced by a forum selection clause in an agreement between the parties. Id. In
the face of such a provision, parties who challenge its application bear a heavy
burden to show why the provision should not be enforced. Id.
In this case, the guaranty document that Appellants signed contains a forum
selection clause that provides that they “irrevocably submit to the nonexclusive
jurisdiction of the courts of the State of Texas” and that they “irrevocably waive
any objection” to venue or to an inconvenient forum. In those provisions,
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Appellants irrevocably submit to the nonexclusive jurisdiction of Texas courts.
Appellants provide neither reference to evidence nor argument to convince us that
the agreement regarding forum selection should not be enforced. The conclusory
statement that “[c]oming over to Texas for the purposes of this litigation would
impose a time and economic hardship” is not sufficient to show that the
enforcement of the forum selection provision would be unreasonable and unjust or
that the clause was invalid due to fraud or overreaching. In re Automated
Collection Techs., Inc., 156 S.W.3d 557, 559 (Tex. 2004); In re AIU Ins. Co., 148
S.W.3d 109, 112 (Tex. 2004). Neither have Appellants shown that the agreed
forum is inconvenient to the extent that the litigation is such that it deprives them
of their day in court. See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15
(1972); see also Tri-State Bldg., 184 S.W.3d at 248. Appellants have not shown
that their agreement regarding personal jurisdiction should not be enforced. We
hold that Appellants consented to jurisdiction in the courts of the State of Texas
and that the trial court did not err when it so held. Appellants’ sole issue on appeal
is overruled.
We affirm the order of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
September 25, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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