in Re Benica Brown, Ind. and D/B/A Connection IT Services

Writ of Mandamus is Conditionally Granted; Opinion Filed November 21, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01354-CV
IN RE BENICA BROWN, INDIVIDUALLY AND D/B/A CONNECTION IT
SERVICES, Relators
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-13-02375-M
OPINION
Before Justices Moseley, Bridges, and Lewis
Opinion by Justice Moseley
Relator Benica Brown was sued by her former employer, real party in interest Digital
Intelligence Systems, LLC (DISYS). She moved to dismiss based on a forum-selection clause in
their employment agreement—an agreement DISYS drafted and required Brown to sign. After
the trial court denied her motion, she filed this petition for writ of mandamus. We conclude the
trial court abused its discretion by refusing to enforce the forum-selection clause and Brown has
no adequate remedy by appeal. We therefore conditionally grant the writ of mandamus.
Brown was previously employed by DISYS in its Dallas office. At the start of her
employment, Brown signed an employment agreement. The agreement contained a forum-
selection clause specifying Virginia as the exclusive forum for the resolution of any disputes
concerning the agreement or Brown’s employment. 1
Despite the express language of the employment agreement, DISYS sued Brown in
Dallas County for breach of contract, fraud and fraudulent inducement, misappropriation of trade
secrets, conversion, and tortious interference with existing and prospective contracts. DISYS
also sought a temporary restraining order and temporary injunction.
Based on the forum-selection clause, Brown moved to dismiss all of DISYS’s claims
against her. DISYS opposed the motion and sought to avoid enforcement of the forum-selection
clause it drafted. In support of its position, DISYS argued Texas law prohibits parties from
contracting away mandatory venue, it would be inconvenient for all the parties and witnesses if
the case were transferred to Virginia, and enforcing the forum selection clause would be void as
against public policy. The trial court denied Brown’s motion to dismiss. This mandamus
proceeding followed.
The Texas Supreme Court has consistently granted petitions for writ of mandamus to
enforce forum-selection clauses because a trial court that improperly refuses to enforce such a
clause has clearly abused its discretion. In re ADM Investor Servs., Inc., 304 S.W.3d 371, 374
(Tex. 2010) (orig. proceeding) (citing In re AIU Ins. Co., 148 S.W.3d 109, 114–15 (Tex. 2004)
(orig. proceeding)); see In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010) (orig.
proceeding) (“A trial court abuses its discretion when it fails to properly interpret or apply a
1
The forum-selection clause reads as follows:
Choice of Law/Jurisdiction. Employee acknowledges that this Agreement was made by the
Parties in the Commonwealth of Virginia and shall be governed, construed and enforced in
accordance with the laws of the Commonwealth of Virginia (without regard to its conflict of law
principles). Employee acknowledges that the state and federal courts of the Commonwealth of
Virginia shall be the exclusive forum for the resolution of any disputes concerning this Agreement
or concerning Employee’s employment with the Company, and that Employee agrees to submit to
the jurisdiction of those courts, waiving the defenses of lack of personal jurisdiction or
inconvenient forum.
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forum-selection clause.”) (citing In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (orig.
proceeding)).
Further, an appellate remedy is inadequate when a trial court improperly refuses to
enforce a forum-selection clause because allowing the trial to go forward will “vitiate and render
illusory the subject matter of an appeal,” that is, trial in the proper forum. In re AIU Ins. Co.,
148 S.W.3d at 115 (quoting Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992));
accord In re Laibe Corp., 307 S.W.3d at 316.
A trial court abuses its discretion by refusing to enforce a forum-selection clause unless
the party opposing enforcement clearly shows: (1) enforcement would be unreasonable or unjust;
(2) the clause is invalid for reasons of fraud or overreaching; (3) enforcement would contravene
a strong public policy of the forum where the suit was brought; or (4) the selected forum would
be seriously inconvenient for trial. In re Laibe Corp., 307 S.W.3d at 316; In re ADM Investor
Servs., 304 S.W.3d at 375. The burden of proof is heavy for the party challenging enforcement.
In re Laibe Corp., 307 S.W.3d at 316. Further, if the inconvenience of litigating in the chosen
forum is foreseeable at the time the contract is entered into, the party seeking to avoid the forum
selection clause must “show that trial in the contractual forum will be so gravely difficult and
inconvenient that he will for all practical purposes be deprived of his day in court.” In re AIU
Ins. Co., 148 S.W.3d at 113 (quoting M.S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18, 92
S. Ct. 1907 (1972)).
We see nothing in the record that would permit a finding that requiring DISYS to comply
with the forum-selection clause it drafted would be unreasonable or unjust, or that the clause it
drafted is now invalid for reasons of fraud or overreaching. See In re Int’l Profit Assocs., Inc.,
274 S.W.3d 672, 678 (Tex. 2009) (orig. proceeding) (claims of “overreaching” analyzed in the
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context of whether the contract results in unfair surprise or oppression to the party alleging
overreaching).
DISYS also argues the forum-selection clause should not be enforced because Virginia
would be an inconvenient forum for trial. Brown is not complaining of the inconvenience of
litigating there. (Indeed, the forum-selection clause waives Brown’s “defenses of lack of
personal jurisdiction or inconvenient forum.”) And there is information in the record that DISYS
has an office in Virginia. Moreover, “[b]y entering into an agreement with a forum-selection
clause, the parties effectively represent to each other that the agreed forum is not so inconvenient
that enforcing the clause will deprive either party of its day in court, whether for cost or other
reasons.” In re Lyon Fin. Servs., Inc., 257 S.W.3d 228, 234 (Tex. 2008) (orig. proceeding).
DISYS certainly could have foreseen that it would be required to litigate against Brown
in Virginia, especially given that it drafted the employment agreement containing that
requirement and required Brown to sign it. There is nothing in the record indicating that any of
the inconvenience now complained of was not readily apparent to DISYS at the time of
contracting, and nothing that would support a finding that a trial in Virginia “will be so gravely
difficult and inconvenient” that DISYS will “for all practical purposes be deprived of [its] day in
court.” See In re AIU Ins. Co., 148 S.W.3d at 113.
As to whether enforcing the forum-selection clause would violate Texas public policy,
DISYS argues it violates a mandatory venue statute applicable to injunctions against individuals.
See TEX. CIV. PRAC. & REM. CODE ANN. § 65.023 (West 2008) (requiring a writ of injunction to
be in the county in which the defendant is domiciled). However, forum and venue have distinct
legal meanings. A forum-selection agreement is one that chooses another state or sovereign as
the location for trial, whereas a venue-selection agreement chooses a particular county or court
within that state or sovereign. See Ramsay v. Tex. Trading Co., Inc., 254 S.W.3d 620, 627 (Tex.
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App.—Texarkana 2008, pet. denied) (quoting In re Great Lakes Dredge & Dock Co., L.L.C., 251
S.W.3d 68, 74–75 (Tex. App.—Corpus Christi 2008, orig. proceeding)). Here, it is undisputed
that the employment agreement contains a forum-selection clause specifying Virginia as the
forum for any disputes. Thus, because Texas is not the proper forum for the dispute, its
mandatory venue statute is never triggered. See id.
DISYS also argues the forum-selection clause is void as against public policy because
forcing the witnesses, Brown, and employees of DISYS—all of whom it claims reside in
Texas—to travel to Virginia for trial would be unreasonable and the public’s interest favors
jurisdiction in Texas. Brown is not complaining of litigating in Virginia. DISYS has an office in
Virginia, and any of its employee witnesses are under its control. Depositions may be had of any
witnesses not subject to attending the trial. And DISYS could have foreseen litigation in
Virginia for claims arising out of its employment agreement with Brown. Lastly, Virginia is not
a remote alien forum for purposes of forum-selection agreements. See In re Int’l Profit Assocs.,
Inc., 274 S.W.3d 672, 679 (Tex. 2009) (orig. proceeding). DISYS has not demonstrated that the
interests of witnesses residing in Texas should override the parties’ choice of forum in which it
would resolve disputes with Brown. See id.
In its response to Brown’s petition for writ of mandamus, DISYS also claims the forum-
selection clause does not apply because it asserted a cause of action for fraudulent inducement
based on based on Brown’s “misrepresentations in inducing DISYS to enter into” the
employment agreement and its claim does not involve the employment agreement’s terms or
construction. “[F]raudulent inducement to sign an agreement containing a dispute resolution
agreement such as an arbitration clause or forum-selection clause will not bar enforcement of the
clause unless the specific clause was the product of fraud or coercion.” In re Lyon, 257 S.W.3d
at 232; see also In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 134 (Tex. 2004) (orig.
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proceeding) (“Any provision relating to resolution of future disputes, included as part of a larger
agreement, would rarely be enforced if the provision could be avoided by a general allegation of
fraud directed at the entire agreement”). DISYS drafted the employment agreement that
contained the forum-selection clause and DISYS does not allege the specific forum-selection
clause itself was the product of fraud or coercion. Thus, the forum-selection clause applies to
claims for fraudulent inducement as well as breach of contract.
We conclude the record does not support any of the exceptions to the policy of enforcing
forum-selection clauses. See In re Laibe Corp., 307 S.W.3d at 316; In re ADM Investor Servs.,
304 S.W.3d at 375. Therefore, the trial court abused its discretion by refusing to enforce the
forum-selection clause. Because the forum-selection clause clearly and unambiguously requires
suits concerning the agreement to be brought in Virginia, the trial court abused its discretion by
denying Brown’s motion to dismiss. Accordingly, we conditionally grant the petition for writ of
mandamus and order the trial court to: (1) vacate its orders denying Brown’s motion to dismiss
and (2) to sign an order granting Brown’s motion to dismiss. The writ will issue only in the
event the trial court fails to do so.
/Jim Moseley/
JIM MOSELEY
JUSTICE
131354F.P05
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