*1 817 has limited available Legislature The SERVICES, In ADM INVESTOR to that remedies post-conviction
collateral INC., Relator. 11.07 pursuant to Article corpus, of habeas Procedure of Criminal of the Code 12-08-00125-CV. Ap- of through the Texas Court Criminal art. CRim. PROc. peals. Ann. Tex.Code Texas, Appeals Court (Vernon Supp.2007). 11.07 Tyler. and lower Appeals of Criminal Court exclusive recognized that “the courts have June felony con- remedy in final post-conviction through a writ in Texas courts
victions to Tex.Code corpus pursuant
of habeas art. 11.07.” Olivo [Ann.] CRIM. PROC. (Tex.Crim.
State, n. 8 Harrison, 187 accord In re
App.1996); (Tex.App.-Texarkana
2006, orig. proceeding).
Further, authority explicit there is of review equitable that the bill
ly holding Ex
has no criminal case. application Williams,
parte 165 Tex.Crim. (1957), on other overruled parte Taylor, Ex
grounds McLean v. (Tex.Crim.App.1975); see
State, 146 Tex.Crim. (1943) has (holding that bill of review only to criminal cases and application
no appeal or resort to
available remedies are corpus).
writ of habeas judg- not from a appeal
The notice of from the
ment of conviction—but denial
a bill of have reviewed review. We authority find no at bar and can
order a type us that it is
permitting to conclude out Legislature has set
of order which and the authorities being appealable, contrary. to the We mandate
cited above ap- jurisdiction over
therefore have
peal. juris- appeal want
We
diction. *2 Beacom, pro
Richard A. se. J. Brad McCampbell, for relator. County Hop- Alexander, from Rains Forni, transfer venue John W. Michael J. Later, original filed an County. kins in interest. for real along with a motion to the suit answer *3 WORTHEN, and of C.J. Panel consisted clause relying a forum selection dismiss GRIFFITH, J. and, a motion alternatively, in the contract County, Tex- Hopkins to
to transfer venue as. OPINION con WORTHEN, Chief Justice. T. JAMES states as follows: contract in the tained Services, peti- Inc. filed a ADM Investor arising direct proceedings or All actions challenging the of mandamus for writ otherwise, in connection indirectly ly, deny- February 2008 order trial court’s of, to, from this with, out related deny dismiss.1 We ing its motion to any covered Agreement or transaction
writ. law governed hereby shall be and may, at the discretion Illinois and Background Factual [ADM], litigated in courts election of 29, 2001, Jetta Prescott and On March is Illinois. whose situs within agreement with signed Mark Lowther proper proce to dismiss is A motion ADM to Trading Company, Inc. for a forum enforcing for mechanism dural Chicago on the Board trade commodities agree to the party clause that a Trading, their behalf.2 Texas of Trade on filing Deep Wa violated suit. ment has Dawson, Charles acted through its owner Intern., 234 Wells v. Shell ter Slender dealings in all of agent ADM’s its [14th (Tex.App.-Houston when agreement, Prescott. Under filed). 2007, pet. Dist.] deficit account balance had a Prescott’s the court set On November $50,000.00, authorized to over ADM was January on Texas hearing any deficien- close the account and collect By to transfer venue. Trading’s motion early cies from Dawson. 7, 2008, ADM re- January letter dated nega- commodity account reached a cott’s motion to hearing on its quested that $57,844.29. ADM closed tive balance February 2008. On be set for amount from and collected this her account the court set January then filed suit his Dawson. Dawson on ADM’s motion February Prescott and capacity against individual Trad- hearing on Texas At the dismiss. her. judgment against obtained venue, Prescott to transfer ing’s motion transfer, ADM did not objected but Background Procedural Following the hear- appearance. make an grant- an order against suit Texas Trad- court entered ing, filed a the trial jointly to transfer alleging they ing were Transfer’s motion ing and ADM legal venue, suit severing various Prescott’s severally liable under and ADM, fraud, from her suit theories, of fiducia- including breach against Texas suit transferring her duty, negligence. ry Hopkins County. and a motion to original answer filed an pro- to this Lowther is not A. 2. Because Richard Respondent Honorable Beacom, Jr., ceeding, to him further we will not refer Judge Dis- of the 154th Judicial opinion. County, this Texas. trict Court of Rains later, A month the court heard ing that mandamus relief is available to motion to dismiss clauses). Prescott’s suit it. enforce forum selection Conse Following hearing, this the trial court en- quently, only issue before us is wheth tered an order denying ADM’s er the trial court abused its discretion date, dismiss. On the same denying issued a ADM’s motion to dismiss. letter explaining ruling, its in part which
read as follows: Waiver Forum Selection Clause The forum selection-clause taken alone proceeding contends this enforceable, and if [ADM] was the *4 the trial court its abused discretion in de- defendant, lone I would the dis- dismiss, nying its motion to was which missal. filed to enforce the forum selection clause co-defendant, However Texas Trad- response, Prescott’s contract. In ing Company, agent which acts as an alleges cott right ADM waived its Texas, being [for ADM] sued for enforce its forum selection clause allow- the same causes It action. seems ing agent, its Texas Trading, to have Pres- to the unreasonable Court Plaintiff cott’s Trading lawsuit Texas sev- pursue
to have to the same cause of ered Hopkins County. and transferred to action two defendants in two Forum Selection Clauses different states. Enforcement of forum selection original proceeding This followed. is mandatory clauses party op unless the Availability of Mandamus posing clearly enforcement shows that en forcement would be Ordinarily, mandamus unreasonable and un will issue just, if or that the relator the clause was establishes a clear invalid such abuse of reasons as or overreaching. discretion for which there fraud In re adequate is no Inc., appellate remedy. Automated Technologies, In Collection re Prudential Ins. Am., (Tex.2004). (Tex. 557, Co. 148 156 S.W.3d 559 Forum S.W.3d 135-36 2004); Packer, apply parties selection clauses to all Walker 827 to the S.W.2d (Tex.1992). transaction. 839 A See CNOOC Asia trial court Southeast abuses its (SUNDA) Ltd., Ltd. v. Paladin discretion when it Resources reaches a decision so 222 arbitrary (Tex.App.-Dallas and 898 unreasonable as to amount denied). pet. However, to a clear and prejudicial error of or if enforcement law clearly it fails to clauses can correctly analyze or be waived. apply See, e.g., the law. In In re AIU Ins. Capital Mgmt., Cerberus 148 S.W.3d (Tex.2004). L.P., (Tex.2005). 120-21 requires 164 S.W.3d Waiver intent, relinquish either the intentional general rule, aAs the relator has ment right of known or intentional con the burden to establish both prerequisites claiming duct inconsistent with that right. to mandamus relief. Helicop Canadian Capital In re Elec. Corp., Gen. 203 S.W.3d Wittig, ters Ltd. v. 314, 316 (Tex.1994). However, the Texas Supreme Court adequate has held that there is no Analogous Clauses remedy by appeal when trial court re Texas, fuses enforce a forum selection clause. concerning cases in the waiver Tire, L.L.C., In re Pirelli analogous arbitration context ques- are (Tex.2007); AutoNation, see also In re tions of relating waiver selection (Tex.2007) (hold clauses. See Automated Collection Tech- Analysis at 559. The nologies, an Supreme Court has described arbitra- dealings contractual In its type of forum- agreement as “another Prescott, Trading agent as acted and stated that selection clause” has al ADM. Prescott principal, behalf of its meaningful distinction between “see[s] Trading, and leged that ADM ar- clause and type this of forum-selection jointly and sev agent, and were principal Ins., 148 S.W.3d clauses.” AIU bitration allegedly to her for their erally liable has further con- 116. The court The causes of action she wrongful actions. law to arbitra- and Texas applicable cluded that the both ADM asserted concerning and the avail- involved the same facts same tion cases waiver re remedy ADM adequate witnesses. ability appellate suit. The sponded separately to Prescott’s same mat- applies analogy also to the respons their primary difference between in the context of forum selection ters sought to enforce the es was that 115,121. Id. at clauses. while Texas *5 Trading by the did not. Texas was bound public is favored Arbitration CNOOC, 222 clause. See selection re policy. In Bruce Terminix See seeking But instead of to at 898. S.W.3d strong pre A it, af immediately Trading, enforce Texas against finding a waiver of sumption exists dismiss, re ter ADM filed its motion to arbitration, any to right and doubts its transfer hearing a on motion to quested are in favor of regarding waiver resolved venue. arbitration. See id. at 704-05. Whether depends inaction, agent, ADM its By
waiver occurs on the individual allowed its Trading, irrevocably to establish of each case. In Texas facts and circumstances County where Pres- terconex, as the venue Ugarov, Hopkins Inc. Trading would cott’s suit Texas 2007, no (Tex.App.-Houston [1st Dist.] timely mo- ADM did not assert its tried. pet.). months in during tion to dismiss the two transfer Trading’s motion to to which Texas party may right A waive its ADM hearing. Nor did venue was set by taking arbitrate an action inconsistent hearing on Texas to continue the seek party’s to right opposing with venue to a motion to transfer Trading’s Citigroup In Mar prejudice. Global to dismiss had date after ADM’s motion (Tex. kets, 481-82 Instead, days four before the been heard. App.-Dallas 2006, orig. proceeding). One Trading’s on Texas hearing date of the making preju a of the factors relevant venue, requested ADM motion to transfer a dice determination is whether to dismiss. The setting on its motion right its to arbitrate timely failed to assert February requested ADM was date Re dispute. Republic Ins. Co. v. Paico after the one month approximately (5th LLC, ceivables, 383 F.3d was to Trading’s on Texas motion hearing Cir.2004). to as the mere failure While occur. right to demand arbitration does sert into waiver of that first with its pressed not alone translate Had ADM forward dismiss, ques the trial court would right, this failure does bear on to motion may, to it due to prejudice, along with oth have had no choice but mandatory clause in considerations, to require a court con er required would have contract. This has occurred. Id. clude that waiver Texas to Trading alongside defend the suit petition for writ of mandamus and order ADM in Illinois if Prescott had refiled the trial court to vacate its order Febru- there. timely Because ADM’s failure to ary 2008 which it denied ADM’s dismiss, motion assert its to Prescott has prejudice motion to dismiss without but to try choice her suit granting instead issue order Trading County, in Hopkins Texas. to dismiss. ADM’s failure to assert its motion to Background prior on Texas
Trading’s motion to transfer venue was Prescott, Lowther, along opened right inconsistent with its enforce the commodity early account with ADM. forum selection clause. The granting of commodity ADM closed Prescott’s ADM’s motion to dismiss would have re- significant account because it had defi- in prejudice sulted to Prescott because she ciency. As a deficiency result of the required try would be two suits involv- account, Prescott’s in ex- collected ing the same facts and the same witnesses $100,000 cess of from Trading, be- states, separate two Texas and Illinois. cause responsible was Therefore, we conclude that ADM waived the in its introducing debt role as broker. right its enforce the then filed suit clause. Hopkins cott in County, Texas. ADM was not a party to this suit. Texas
Disposition judgment obtained a against Prescott. *6 upon Based our review the record and 11, 2007, On September Prescott filed the foregoing analysis, we conclude that suit ADM Texas in Trading the trial court did not abuse its discretion County. Rains filed a mo- in denying ADM’s motion to dismiss based tion to transfer venue and an answer. On Therefore, on its forum selection clause. 18, 2007, answer, October ADM filed an deny petition we ADM’s for writ of man- dismiss, motion to and motion to transfer damus. venue. The motion to dismiss was based on a forum selection clause contained HOYLE, J., dissenting. the contract between Prescott and ADM. HOYLE, Justice, dissenting. Next, requested hearing I respectfully venue, dissent. Because ADM’s on its motion to transfer and that conduct did not substantially 11, invoke the January was set for 2008. On judicial process, 7, ADM did 2008, not en- January waive sent a via ADM letter forcement the forum stating selection clause. facsimile to Prescott’s counsel that Thus, Prescott failed her burden to es- ADM’s motion to transfer would not be Similarly, 11, 2008, January tablish waiver ADM. heard ADM because failed establish that the forum selection first wanted the to hear its motion to court not clause should be enforced because dismiss. further stated the letter unjust unreasonable or any January invalid for 2008 that its motion to dis- other The trial reason. court then had but miss February was set to heard on be action, one proper course of which was to 2008. January On the trial court grant ADM’s motion to dismiss. Because transferred Prescott’s case the trial court did not proceed in that from County Hopkins Rains manner, the trial court County. abused its discre- The trial court then conducted Therefore, tion. I evidentiary hearing would on ADM’s motion in the chosen litigating February 8, Febru- venience 2008. On dismiss on contracting, at the time of is foreseeable ary 2008, the trial court denied ADM’s must seeking the clause to avoid to dismiss. fo- “trial in the contractual establish and incon- gravely difficult rum will be so of Review Mandamus-Standard practical pur- all that he will venient if estab will issue the relator Mandamus day in court.” of his poses deprived be for which abuse of discretion lishes a clear (quoting at 113 148 S.W.3d AIU Ins. remedy. In adequate appellate there is Co., [407 Zapata Bremen v. M/S Off-Shore Am., 148 re Prudential Ins. Co. of 1907, [1917, 32 1,] 18, 92 S.Ct. U.S. 124, 135-36 a trial court When ]). (1972) To found over- L.Ed.2d 513 forum selection refuses to enforce valid must forum selection clause reaching, the clause, adequate appellate is no rem there oppression. surprise in unfair result Services, Lyon Fin. edy. In 232-33, Fin., at Lyon 257 S.W.3d See 228, 231-32, 07-0486, 2008 WL 2487092, *3-4, LEXIS 2008 Tex. WL *2-3, Tex. LEXIS at at *9. (Tex.2008) curiam). Thus, (per when *5-6 reviewing a trial court’s denial of a motion Waiver to dismiss based on of a forum se- addressing waiver When clause, the trial court our focus whether clause, are analo- cases lection arbitration clearly abused its discretion. To deter Technologies, Automated Collection gous. clearly mine the trial court whether any con- Like other at 559. discretion, court reviewing abused its can be forum selection clause right, tract challenged rul must consider whether to re- parties agree instead waived if the compelled was one ing or order Perry courts. See dispute solve arbitrary, was facts and circumstances or Cull, 580, 593, 2008 Homes v. unreasonable, or reached without refer *6, J. Sup.Ct. 51 Tex. WL any guiding principles. ence rules or *7 (Tex. May at *28 Tex. LEXIS 2008 451 Huag, (Tex.App. (not 2008) publication) released for yet 2005, orig. proceeding). Houston [1st Dist.] rights). (discussing of arbitration waiver analyze A by clear failure the trial court by a forum selection clause party A waives correctly will apply or the law constitute invoking judicial process. substantially the Packer, an abuse of discretion. Walker *4, id., at at *18. WL 1922978 See (Tex.1992). 833, 840 strong presumption a begin We legal is a against waiver. See id. Waiver Clause
Forum Selection by case basis on a case question decided Generally, a selection clause must forum totality of the circum- by the reviewing Co., id., *5, Ins. be enforced. re AIU at stances. See 2008 WL (Tex.2004). party Tex., A *23; 111-12 S.W.3d Homes In re Fleetwood at of 692, 693, of L.P., 06-0943, enforcement a forum selection opposing S.W.3d clearly *1, that enforcement clause must show at 2008 Tex. LEXIS 2008 WL 2008) (Tex. the cu- unjust, (per is or that *2 unreasonable and at June 1) riam). reason include: is invalid for some other circumstances clause Those selec- In re Au- knew of the forum overreaching. fraud or when the movant such as 2) clause, discovery has much Technologies, 156 tion how Collection tomated 4) 3) it, conducted, initiated a who This is been rather it related to the merits whether the incon- heavy burden. See id. When than the forum applica selection clause’s the forum a fifing selection issue motion 5) bility, how much of it would responsive be useful in its initial pleading. 6) forum, the other and whether the mov- Although ADM waited almost four months sought judgment
ant on heard, the See merits. to have its motion to dismiss there id., *5, 2008 WL at at *23-24. is no in the evidence record that it con- The waiver of a forum selection can any discovery any relief, sought ducted implied party’s unequivocal be from a merits, con judgment much less on from the duct, cases, “strong pre but close Instead, the trial court the interim. sumption governs. waiver” See on simply Prescott focuses the actions aof id., 1922978, *6, at 2008 WL at *28. Addi obtaining codefendant in of transfer ven- tionally, party opposing enforce arguing as her ue basis that ADM ment of the forum selection clause must waived of enforcement the forum selection establish that prejudice actions, suffered as a clause. As it relates to all ADM’s constituting result the actions delay waiver. that was shown was of almost four Technologies, Automated Collection months to obtain a on its objection dismiss and a lack of ato code- fendant’s motion to transfer venue. Un- Supreme Court has decided facts, clearly der these Prescott failed to delayed waiver when a five substantially demonstrate that ADM in- in seeking months enforcement a forum thus, judicial voked the process, and clause, requested trial, a jury not did waive enforcement of the forum fee, paid jury general and filed a denial selection clause. that did not raise the selection is sue. AIU Ins. at 120-21 Overreaching Unjust, Unreasonable, (“We months], [five have held that delays Although longer, upon majori- indeed far not relied are not waiver clause, ty, argues of an further that arbitration and there is no sound basis for motion to dismiss based the forum se- applying different rule to ....”) genre improper requir- lection clause because forum-selection clauses (internal omitted). ing proceed in Similarly, citations Prescott to Illinois would unjust Supreme Finally, and unreasonable. Court has decided party delayed argues waiver when a cott four months selection clause seeking overreaching. enforcement a forum selec clause, filed general special deni *8 her heavy Prescott has failed in burden did not als that raise the forum selection to establish that the selection clause issue, counterclaims, brought served re unjust certainly or unreasonable. While disclosure, for quests twenty-eight re a trial in Texas is more for a convenient for quests production, twenty-five requests resident, in nothing the record es- admissions, interrogatories, nine proceed tablishes that not Prescott could compel and filed discovery a motion to fact, “[b]y entering Illinois. into an responses. Tech Automated Collection clause, agreement with a forum-selection nologies, 558-60. parties effectively represent the to each Here, although majority agreed the finds that other that the forum is not so enforcing AJDM enforcement of the waived forum inconvenient that clause will clause, court, day selection deprive ADM committed far fewer either of its “substantially ju- actions that Lyon invoked the whether cost or other reasons.” Fin., 07-0486, 228, 234, process.” immediately dicial raised *5, 2487092, at Tex. LEXIS 2008 WL GRAY, Appellant Artis James failed to Prescott at *13. Because in Illinois trial present evidence that deprive practical purposes for all
would Texas, Appellee. STATE court, to ADM’s motion day of her her or No. 06-07-00154-CR. unjust could not be denied dismiss unreasonable. Texas, Appeals Court Texarkana.
Similarly, has failed to establish Prescott overreaching. that the clause is 5, 2008. May Submitted it, signing prior to read the contract July 2, Decided that was unaware argue does not she she in the con- of the no evidence presented
tract. Prescott Instead, trickery by ADM.
overreaching a transaction simply evidence shows on a to business
which ADM offered do accepted. Be- basis and Prescott
specified no evidence presented
cause Prescott in unfair forum selection clause results to oppression, ADM’s motion
surprise or over- could not denied as
reaching.
Conclusion carry her failed to
Because Prescott ADM,
burden to establish waiver of the
unjustness and unreasonableness clause, overreaching by obtaining agreement
ADM in Prescott’s clause, trial court had but one the motion which was
option, denying dis-
dismiss. In discretion,
miss, the trial court abused its to mandamus. Be-
and ADM is entitled majority other- has concluded
cause
wise, I dissent. respectfully