*1 41.004(a) Questions § tort typical awards covers. IV. Certified TOA, statutory in the penalty A civil al- above, For the reasons discussed though purposes penalty called a of the we hereby certify following determina TOA, may a penalty not be awarded as questions tive of law to Supreme Texas Chapter 41. meaning within the of Court of Texas: Indeed, the Supreme Texas Court could 1. Whether an action for a penal- “civil distinguish penalties statutory civil from ty” under Texas Optometry Act exemplary damages on the basis that stat- is an which “action a claimant utory penalties civil are tailored to aid the seeks damages relating to a cause of State its law enforcement role. On one action” the meaning within of Chap- hand, statutory civil are penalties similar ter 41 of the Texas Civil Practice because, punitive damages punitive like words, and Remedies Code. In other damages, statutory penalties “deter and penalties are civil awarded under culpable punish conduct.” See Serv. Corp. § Tex. “damages” Occ.Code 351.605 Guerra, (Tex. Int’l S.W.3d as that is term used Tex. Civ. 2011) (addressing punitive purpose 41.002(a). § Prac. & Rem.Code Nonetheless, damages). statutory penal- If civil penalties awarded under the also differ punitive damages ties from be- Optometry Texas Act are “damages” statutory penalties cause have been au- as that term is used in Tex. Civ. Legislature thorized the Texas to aid in 41.002(a), § Prac. & Rem.Code State v. Harring- law See enforcement. are they “exemplary whether dam- (Tex.1966) (ob- ton, S.W.2d ages” Tex. such that Civ. Prac. & serving penalty that a statutory regarding 41.004(a) § precludes Rem.Code penal- violations various rules “is civil any recovery their case where ty primary purpose statute enacted for the plaintiff not damages does receive encouraging law promoting enforce- damages. other than nominal deterring ment and violations of the We disclaim intention desire that rules”). Thus, Supreme the Texas Court the Supreme Court of Texas confine its statutory penalties could conclude that are reply to form or precise scope damages, they a form of cannot be questions certified. exemplary damages. considered issue, As with the first Texas Su-
preme Court has not addressed whether
statutory penalties, penal- civil such as the TOA, under
ties are form of exem- plary damages. Additionally, the Court In re REGISTER NORTH LLOYD’S interplay has addressed the AMERICA, INCORPORATED, 41.002, § which applies Chap- the limits of Petitioner. seeking ter action damages, and No. 14-20554. 41.004, § which limits the award of exem- plary damages. possible Because Appeals, United States Court plaintiffs seeking here could dam- Fifth Circuit. § under ages exemplary 41.002 but not 24, 2015. Feb. 41.004, damages certify § under a re- question lated on this issue to the Texas
Supreme Court. *4 (argued),
Eric Nichols Gretchen J.R. Redden, (argued), Beck Sims Sween L.L.P., Austin, TX, for Petitioner. Kimball, (argued), Esq. John Devereux York, N.Y., Rome, L.L.P., Blank New Wil- Freeman, Tracy Attorney, Esq., liam Letourneau, Rome, Blank Keith Bernard L.L.P., Houston, TX, Respondent. SMITH, ELROD, and Before HIGGINSON, Judges. Circuit SMITH, Judge: Circuit JERRY E. America, Lloyd’s Register North Inc. (“LRNA”), society was the classification certifying ship that Irv- responsible for ing Shipbuilding, (“Irving”), Inc. was build- (“Pearl Cruises, for Pearl Seas LLC ing Seas”). with Pearl Seas was dissatisfied Contract”) years in ship engaged Irving and several with under which LRNA Irving. construction, and Af- litigation survey ship during arbitration would concluded, proceedings had Pearl ensuring complied ter those with the rules specified sued LRNA under tort theo- and regulations various in Shipbuild- Contract, inade- regarding allegedly ing including LRNA’s the LR ries Rules. As continued, quate performance certifying ship disputes construction be- arose alleged during misdeeds arbitra- and Irving tween Pearl Seas. in- Irving Ship- tion. voked the arbitration clause in the building Contract and contentious ground LRNA moved to dismiss on the continued arbitration until Irving (“FNC”), non claim- conveniens forum Pearl Seas settled ing that forum-selection clause Lloyd’s Register Regulations Rules and (the
for the Classification of “LR Ships II. Rules”) and in the contract sued LRNA in the court a Irving required LRNA and Seas to quo fraud, alleging gross neg- late bring England. the claims in The district ligence, negligent misrepresentation, collu- court denied the motion to without dismiss sion, aiding abetting, conspiracy, civil explanation. peti- written oral LRNA promissory estoppel in tort. Each for a tions writ of mandamus direct the essentially cause of action is based on to vacate its denial and dismiss for *5 theory misrepresented that LRNA the sta- Because clearly FNC. the district court tus of the vessel to Pearl the Seas and to patent- abused discretion and reached arbitrators. result, ly erroneous and because LRNA FNC, LRNA moved to dismiss for seek- way no effectively has to vindicate its ing enforcement of two forum-selection mandamus, without a rights writ of it said required clauses that the action to grant petition. the brought England. be in appears The first I. reads, “Any the LR Rules and dispute about the or the Services Contract is sub- following The facts are from Pearl taken ject jurisdiction to the exclusive of the First Complaint. Seas’ Amended English governed by courts and will be and Seas LRNA in 2006 communicated English appears law.” The second in the potentially providing about LRNA’s classi- Contract Classification between LRNA fication services for the vessels reads, claim, Irving “Any dispute, and and operating. would be Those classification litigation or the member of require certify would to services LRNA LR Group arising Client from ship complied with certain stan- with provided connection the Services dards, including requirements by subject LR be shall to the exclusive (the Islands) flag state ship’s Marshall jurisdiction the English of courts and will society’s classification rules. own Irving governed English law.” agreed Pearl Seas would be LRNA both of prevent- claimed that these clauses society ships. the classification for its from bringing ed Pearl this suit 2006, Later Pearl Seas entered into a Texas. (the Contract”) contract “Shipbuilding Irving Irving ap- under which would Pearl Seas maintained neither ship for plied, signa- build Pearl Seas. LRNA then Pearl Seas was not a because (“Classification agreement into a tory containing entered contract to a forum- to ineffective vindicate judgment held a is The district court clause. selection motion for wrongfully denied FNC. questioned hearing in which matters, including the mo- about numerous way adequate is no immedi There A FNC. few weeks to for tion dismiss of FNC. It ately to a denial is review later, denying an order issued the court under the collateral-order doc reviewable to and the motions dismiss several of the Biard, Cauwenberghe trine. Van inspection. for in camera plaintiffs motion 1945, 517, 527, L.Ed.2d 108 S.Ct. U.S. in one its decision “explained” The court (1988). option has the The defendant motions, “Having considered the sentence: ap interlocutory for an seeking of leave law, submissions, the Court applicable 1292(b), § is peal 28 U.S.C. which under de- all motions should be determines that circumstances. limited only available nied.” “a question to be certified must be law as which
controlling question of
to
III.
ground for
there is
difference
substantial
1292(b),
§
opinion,”
and even
28 U.S.C.
extraordinary
to the
To be entitled
is,
if it-
court and the court
both the district
mandamus, LRNA
satis
remedy
has to
appeals
agree
permit
ap
must
First,
have
fy
requirements.
it must
three
Neptuno
v. Naviera
peal. See Gonzalez
adequate
“no
means
attain
other
(5th Cir.1987).
A.A.,
876, 881 n. 5
Cheney
Dist.
relief
v. U.S.
desires.”
[it]
appeals that have consid
Other courts of
Columbia,
542 U.S.
Court
Dist.
have come to the same
question
ered
2576, 159
L.Ed.2d
S.Ct.
1292(b) is not an ade
conclusion: Section
(2004). Second,
to show
it has
a “clear
for mandamus.1
quate substitute
the writ.
indisputable” right to
Id.
adequate means
LRNA is without
third,
And
“must
er adequate. require wise That is difficult A. cases, to In most from satisfy. ment relief First, interlocutory order potentially LRNA must that it has erroneous show final by appeal judgment. after “adequate no means.” The writ is is available other may Even the defendant be re regular appeals though not “a for the substitute 2576, costly 380-81, engage 124 in a and difficult quired at so process,” id. S.Ct. trial and considerable resources ordinary appeal expend LRNA that an must show an appealable court enters requirement This is satis before the inadequate. judgment, litigation those unrecoverable appeals process fied: does not The usual to make means enough costs are not provide way an effective to review a denial inadequate. Roche attaining relief See of a motion to dismiss for FNC. Immediate Ass'n, 21, 319 29- deny Evaporated is v. Milk U.S. appellate review of the decision to (1943). 30, 938, available, 87 L.Ed. rarely review final 63 S.Ct. 1185 after 1292(b) § to be Albany, unavailability certification 1. See Catholic In re Roman Diocese of N.Y., 30, (2d Cir.2014); Inc., concluding denial of a ven- In relevant 745 F.3d 36 Root, Inc., 754, qualified for mandamus Kellogg re & F.3d ue-transfer Brown motion mean, however, (D.C.Cir.2014). Volkswagen In In re relief. That does America, Inc., 304, 1292(b) provides § review by itself sufficient 545 F.3d Cir. 2008) banc), (en did when it is available. the court consider burden, greater There has to be a some error “unless moving party can demon- beyond litigation obstacle to relief costs great prejudice strate arising from trial in obtaining just renders relief not ex- plaintiffs chosen forum.” McLennan pensive effectively unobtainable. Un- v. Eurocopter Am. Corp., Volkswagen, der a defendant’s entitlement (5th Cir.2001). 423-24 Such a standard ordinarily to FNC cannot adequately be provide does not adequate post-judgment through regular vindicated appeals review.2 When one considers the instruc- process. tion in Atlantic Marine that private-
In Volkswagen, we were faced with a
interest
factors of
analysis
FNC
should
petition
mandamus
regarding a denial of a
automatically
weighed
in favor of en-
motion to transfer venue. We held that
forcing
clause,3
a forum-selection
espe-
it is
ordinary
appeals process would not
cially inapposite to
parties
force
rely
on
provide
adequate
an
remedy for the erro- post
appellate
hoc
evaluations of whether
neous decision not to order transfer. Two the clause was worth bargaining for.
factors that we
convincing
found
in the
Even if the standard of review were
present
venue-transfer context are
here.
such that a defendant could convince an
First, a
unlikely
defendant is
to be able to
appeals court
justified
that the error
re-
court,
satisfy
appellate
an
judg-
after final
versal, we acknowledged in
ment,
Volkswagen
that a failure to transfer venue was
that the
by
harm done
going through trial
sufficiently prejudicial as to be outcome-
judgment
to final
would not
second,
be remediable
determinative. And
very
harm
on appeal.
sought
by
litigation
to be
Unrecoverable
transferring
avoided
costs
ven-
witnesses,
do not make
ue—“inconvenience to
review after final
parties
judgment
Roche,
inadequate,
other”—will have worked
29-30,
irreversible
see
at
U.S.
damage
prejudice by
the time of final 63 S.Ct.
but the damage
inflicted
judgment. Volkswagen,
contrary
require
guess
rule would
us
1.
guidance,
the basis for the decision without
re-
ordinary
essentially reducing us to the role of
distinguishing
In
discretion,
placing
the district court’s discretion
and “clear” abuses
we are
1166-67;
Rose
Under-
In re
Disaster Near New Or-
Id. at
4. See
Air Crash
Hartford
cf.
leans, La.,
Cir.1987)
Co.,
(6th
821 F.2d
writers Ins.
Cir.
*8
(en banc),
grounds
on other
sub nom.
2000) ("Because
vacated
the district
[decided a]
court
Airways,
Lopez,
Am.
v.
490
Pan
World
Inc.
clearly
explanation,
motion without
it has
1928,
U.S.
S.Ct.
L.Ed.2d 400
109
104
case.”).
in this
abused
discretion
(1989),
part by
In re Air Crash
reinstated
Orleans, La.,
Disaster Near New
883 F.2d
(5th
(en banc).
Cir.1989)
Volkswagen,
applies
our
of
545 focus is the one that
own
violation
here: direct-
F.3d at
estoppel.
312.
benefits
transcript
July
hearing
The
is
estoppel
Direct-benefits
holds
satisfy
require-
likewise insufficient to
a non-signatory to a
clause
a contract if
or
explanation.
ment of a written
oral
it “knowingly exploits the agreement” con
yet
court
said
it had not
specifically
that
taining the clause. Bridas
S.A.P.I.C.
decided the
of the forum-selection
question
Turkmenistan,
Gov’t
361-
of
clause and offered no conclusion as to its
(5th Cir.2003).
We have identified two
of
applicability
propriety
granting
or
specific ways in which a non-signatory can
motion
denying the
to dismiss. Wheth-
First,
be bound
this theory.
may
under
it
questions
er the court’s
that
indicated
it
“by knowingly seeking
bound
and ob
briefings
understood the law and the
is
taining ‘direct benefits’ from that con
immaterial.
Servs.,
tract.”
Drilling
Noble
Inc. v. Cer
Even
the court’s failure to ex-
though
USA, Inc.,
tex
Cir.
plain
discretion,
an
its decision is
abuse
2010). Second, may
“by
it
be bound
seek
enough:
that
It
be a
is not
must
“clear”
ing to enforce the terms of that contract or
require-
abuse of discretion. That strict
asserting
claims
must be determined
Denying
ment is satisfied here.
dismissal by
reference to
contract.” Id. Direct-
without explanation and without
visi-
estoppel
benefits
binds Pearl Seas to the
weighing
ble
the factors of FNC takes
clause
forum-selection
under
the first
entirely
scope
the decision
outside
of method.6
discretion,
judicial
giving
parties
To
estoppel
invoke direct-benefits
under
reviewing
way
understanding
courts no
theory,
this
LRNA first
show that
must
how the
reached its conclusion and
knowingly
Pearl
exploited
Seas
con-
providing no assurance that
was the
tract during the contract’s existence.
legal analysis.
result of conscientious
Pearl
must
have known about the
terms,
existence of the contract and its
see
2.
473-74,
exploit
id. at
and acted
to
turn
We now
to whether the dis
Second,
contract.
Pearl
must have
“patently
trict court
a
reached
erroneous
obtained some
under the contract.
benefit
result.”
Because
court failed to en
See id. at 473. Because Pearl Seas knew
clause,
force a valid forum-selection
it did
Irving
about
between
the contract
patently err.
LRNA,
it,
exploit
gained
to
acted
it,
benefit from Pearl Seas is
bound
a.
clause in the
forum-selection
Classification
The first
is whether the forum-
question
Contract.
applies
selection clause
case. Pearl
signatory
complaint
Seas is
shows that it
not a
contract
Seas’ own
LRNA,
Irving
there
was aware of the existence of the Classifi-
are
from the
of its
non-signa-
Society
beginning
settled standards under which
cation
tory
Shipbuilding
relationship
can be held to the
of the con-
with LRNA. The
terms
Irving
get
tract.
Contract
classifi-
required
The doctrine on which the
Seas,
LR
nor whether
Because the forum-selection clause from the
Rules also binds
Contract
estoppel
Classification
binds Pearl Seas un-
the second
of direct-benefits
form
estoppel,
der
this rule
direct-benefits
satisfied here.
need
clause in
not determine whether the
*9
party providing
the
on the intent of
the ser-
focus
provide
that would
cation service
met
equally
and
if
would be
here,
selected
information
Pearl Seas
at issue
and
vices
of
copy
had
a
the
ser- Pearl Seas
received
provide the classification
LRNA to
copy
found a
agent
after its
had
contract
ship.
performance
LRNA’s
for the
vices
Seas,
his shoe.
the
to the bottom of
and
stuck
the benefit of Pearl
for
was
carrying out
LRNA as
describes
complaint
Pearl
must
that
Seas
LRNA
also show
communicating with Pearl
and
duties
those
under
a
the
received
direct benefit
has
inexorably
pleadings lead
Pearl Seas’
Seas.
perform-
at
was
473. LRNA
contract.
of the
it was aware
that
to the conclusion
for the benefit
Pearl
ing its services
some' of its
Contract and
Classification
ba-. Seas, examining
ship and communicat-
the
terms, namely, ensuring compliance
sic
of admin-
in the course
ing with
Seas
regulatory requirements
particular
Indeed,
istering classification services.
of a sale to Pearl Seas.
anticipation
repeats the
complaint
own
Otto
Pearl Seas’
that
it
Additionally, Pearl
stated
Seas
for negligent-misrepresenta-
rule
Candies8
Contract’s
of the Classification
learned
against
claims
classification societies:
tion
begun, which
after arbitration had
content
provided
classification services
LRNA
its
con-
early
Pearl Seas
2008.
happened
they
“guidance
knowing
were for the
and
during
receipt
contract
that
of a
complaint
tends
of Pearl Seas.9 And the
benefit”
trigger
does not
direct-benefits
arbitration
actually per-
that
plain
makes
LRNA did
to the
party
LRNA was not
estoppel.
reports
provided
form such services
however,
al-
arbitration,
much of the
This
directly to Pearl
as well.
like-
place after
wrongful conduct took
leged
requirement
that Pearl
wise satisfies
had begun.
arbitration
Seas,
knowing
in addition to
about the
contract,
exploited
it dur-
has
or embraced
nonsignatory
copy
If a
receives
contract;
life of
Pearl Seas
ing the
contract for
of a heretofore-unknown
that
actively participated
ensuring
that
signatory,
it
first time when
sues
it
benefiting
the contract
were
parts of
likely is not
mid-litigation revelation
performed.10
enough
knowing exploitation
it
Seas contends that
did
re-
of direct-bene
under
version
contract
perform-
LRNA’s
But what
ceive a benefit because
estoppel. See id. at 473-74.
fits
deficient.
the situation
that Pearl
did in fact learn
ance was
Unlike
matters is
Hellenic,
receive
be
Pearl Seas did not
content
of the Classification Contract’s
necessary
operate.
that
was
wrongdoing
certification
alleged
fore much
perform-
if we assume that LRNA’s
litigation
Pearl Seas Even
before this
deficient, however,
partial
was
knowledge
test does not
ance
and LRNA.7
pleadings
own statements
its
brief
do not
is erased
Hellenic's
7. Pearl Seas’s
knew,
exactly
copy
society]
received a
complaint:
make clear
when it
'[the classification
known,'
Classification Contract but show
representa-
have
or should
begun.
happened after
had
arbitration
guidance
'were
[Hellenic]'s
tions
intended for
transaction.'")
in a business
and benefit
Candies,
Kaiji Kyokai
Nippon
8.
L.L.C. v.
Otto
(fourth
original).
modification in
(5th Cir.2003).
Corp.,
F.3d 530
473;
535;
Fund,
Drilling,
E.I.
Noble
620 F.3d
Inc.
10. See
Id. at
see Hellenic Inv.
Veritas,
de
& Co. v. Rhone Poulenc
Det Norske
464 F.3d
DuPont
Nemours
Cir.2006)
Intermediates, S.A.S.,
("Any lingering
Hel
doubt whether
Fiber & Resin
garnered a
classifica
(3d Cir.2001).
[the
lenic
benefit from
society's] performance
contract
[ ]
tion
*10
performance was still a direct
fraud,
benefit to
alleging
especially where the
Pearl Seas. If LRNA
not performed
had
fraud is unrelated to the applicability of
all,
under the contract at
performed
had
the equitable doctrine. Pearl Seas does
only
parts
those
that did not benefit Pearl
not assert
that the claimed fraud played
Seas,
requirement
then this
of direct-bene-
in bringing
role
it within the scope of
estoppel
fits
would not be met. But mere-
the forum-selection clause or allowed
ly alleging that a benefit was deficient or
LRNA to hide
inequitable behavior
outweighed by
negative
aspects of the
behind a shield of equity. We decline to
signatory’s actions does not mean that no render
estoppel
direct-benefits
inoperative
benefit was received.11
by stating that
allegation
an
of a defen-
dant’s wrongdoing deny
sufficient to
urges
Pearl Seas also
that direct-
application of this clause.
estoppel
benefits
apply
cannot
because the
Classification Contract disclaims liability
b.
to,
enforceability by,
parties.
third
But reciprocity and mutual enforceability
As
foregoing explanation
requirements
are not
shows,
direct-benefits
the forum-selection clause in the
estoppel, and Pearl Seas cites no authority Classification Contract
apply
does
to Pearl
supports
Indeed,
position.
in its Seas’ action against
That,
LRNA.
however,
brief Pearl
at
times discusses the
is not
analysis
the end of our
of whether
doctrine of third-party beneficiary.
LRNA has a “clear and indisputable” right
to mandamus. Given that the forum-selec
As
recognized,
this court has
third-party
tion
applies,
clause
we must determine
beneficiary and direct-benefits estoppel
whether the district court should have dis
are distinct
Third-party
doctrines.
benefi-
complaint
missed the
in accordance with
ciary doctrine looks at
parties
what the
light
clause.
In
Supreme
they
contract,
intended when
executed the
Marine,
Court’s instructions in Atlantic
whereas direct-benefits estoppel looks at
the court erred when it denied the motion
actions of the
after the contract
to dismiss.
Bridas,
was executed. See
The first new rule rvs., USA, Inc., Inc. v. Certex concerns the extent “direct benefit” a Se (5th Cir.2010). F.3d We have not non-signatory In must receive. our most previously addressed the non-signa when Fund, on-point precedent, Hellenic Inv. tory acquire Here, must knowledge. this Veritas, Inc. v. applied Det Norske Pearl acquired knowledge Seas of the fo direct benefits where estoppel the non- rum-selection clause after some of al the signatory shipowner received the benefit leged misrepresentations, but before other of a the class certificate from classification alleged misrepresentations. majority The Cir.2006). society. 464 opinion decides that estop direct benefits analysis Our “direct benefit” spe- focused pel applies long non-signatory so as the cifically on shipowner’s receipt the of a gains knowledge much “before of the al certificate; class we did hold that the leged wrongdoing and before [the non- society’s preliminary classification inspec- signatory majority files its The lawsuit].” tions, alone, standing conferred a benefit opinion’s-new rule sensible enough, seems Rather, on shipowner. the it was the issu- but a might equally different rule be sensi ance of the class certificate that conferred say, a non-signatory only rule that a Here, a benefit on ble— shipowner. the Pearl can be if bound it learns about the forum- Seas never a class received certificate from selection clause its cause before of action LRNA. majority opinion The nonetheless (i.e. accrues first misrepresenta before the holds that estoppel direct applies benefits tion). The district court would not have because LRNA the ship “examin[ed] patently choosing rule, erred the latter communicat[ed] even though majority opinion prefers administering course of [incomplete] classi- the former.1 fication This is an services.” extension of holding majority Finally, important Hellenic. is note that this sensible, opinion’s might merely “time-and-place” new is not dispute. rule Indeed, likely ground knowledge tiff] is on which had actual of the terms of the Seas, the district hearing court denied LRNA's motion Purchase at a Order.” Pearl America, court, Vicinay argued dismiss. In Petrobras Inc. v. the district cited Petrobras and Cadenas, S.A., F.Supp.2d knowledge that it too lacked of the terms of (S.D.Tex.2013), misrep- district the same court denied forum selection clause until after a motion to dismiss non resentations were made. LRNA did not offer conveniens forum any [plain- response argument. because evidence [was] "there no to that enforced, clause If the forum-selection may only bring its claims
Pearl Seas However, acknowl-
England. that no cause of argument oral
edged at for a English courts exists
action allege negligent misrepre-
ship owner society. a classification against
sentation Candies, Nippon Kaiji L.L.C. Otto Cf. (5th Cir.2003) F.3d 530
Kyokai Corp., 346 negligent-misrepresentation
(permitting societies). against classification
claims
Moreover, the Contract ex- Classification party, third right denies the
pressly Seas, to enforce terms of as Pearl
such Thus, ma- Contract.
the Classification effectively deprives opinion
jority grievances forum for *13 LR.NAto heard.
against I do not believe district
Because erred, and because the ma- patently Pearl Seas of
jority opinion deprives claim, deny peti- I
forum for its would
tion for writ mandamus.
CENTRAL SOUTHWEST TEXAS
DEVELOPMENT, L.L.C.,
Plaintiff-Appellee BANK,
JPMORGAN CHASE ASSOCIATION,
NATIONAL
Defendant-Appellant
FDIC/Washington Bank, Mutual Feder Corporation, Deposit as
al Insurance Washington Mutual
Receiver
Bank, Intervenor-Appellant. 12-51083.
No. Appeals,
United States Court
Fifth Circuit. 2, 2015.
March