OPINION
On March 25, 2015, relator Shelby Lon-goria filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also Tex.R.App. P. 52. In the petition, Shelby asks this court to compel the Honorable Loyd Wright, presiding judge of Probate Court No. 1 of Harris County, to set aside his February 18, 2015 order denying Shelby’s motion to dismiss the claims of real party in interest, Adriana Longoria, based on a forum-selection clause. We conditionally grant the petition for writ of mandamus, in part, and deny it, in part.
I. Background
Eduardo Longoria, Sr., a Mexican citizen and businessman, was the father of Shelby Longoria, Adriana Longoria, Eduardo Longoria, Jr. (“Wayo”), and Sylvia Dorsey. In 2002, Eduardo transferred shares of his two Mexican holding companies, Vértice Empresarial, S.A. de C.V. and Inmuebles y Terrenos, S.A. de C.V. (the “Mexican companies”), to'-a trust administered by a Mexican bank. Banca Afirme Grupo Financiero. Eduardo designated Shelby as 60% beneficiary and Wayo 40% beneficiary of this trust, which the parties describe as the “Afirme Trust.” At the same time, Eduárdo executed a new will, naming Shelby as executor. Eduardo also * signed a “Carta de Voluntad,” or “Wish Letter,” granting Sylvia and Adriana each $3,000,000 in cash to be distributed over time by the Afirme Trust. In December 2002, Eduardo and Adriana executed an “Acuerdo Privado,” or “Private Agreement,” providing that Adriana would receive $3,000,000 from the opérating cash flow generated by the Mexican companies.
Eduardo diéd in 2005. Dorothy Longo-ria, Eduardo’s wife and the mother of the children, died in 2012. On May 6, 2013, Tommy Dorsey, Sylvia’s husband and executor of Dorothy’s estate, sued Shelby for a demand for an accounting and breach of fiduciary duty to Dorothy, alleging that Shelby had diverted her community property interests to himself. Specifically, Tommy alleged, among other things, that (1) Shelby had induced' Eduardo into signing the 2002 Afirme Trust, into which Eduardo conveyed all of his and Dorothy’s shares in the Mexican companies and of which he made Shelby and Wayo the beneficiaries; and (2) Shelby had induced Eduardo into signing the 2002 will, leaving all of Eduardo’s remaining property to Shelby and Wayo.
On June 18, 2013, Shelby filed a will contest, alleging that Sylvia and Adriana had exerted undue influence over Dorothy in connection with her will, which divided Dorothy’s estate equally between Adriana and Sylvia and named Tommy executor, and that Dorothy lacked the capacity to
Adriana answered the will contest on December 4, 2013, and filed counterclaims against Shelby on January 6, 2014. Adriana amended her counterclaims on December 11, 2014, February 5, 2015, and February 11, 2015. Adriana alleged that Shelby induced Eduardo into entering the Private Agreement and into believing that it would be a fair allocation of the estate. She also counterclaimed for tortious interference with inheritance rights, breach of fiduciary duty, tortious inference with the Private Agreement, breach of the obligation to perform the Private Agreement, and breach of the agreement to pay Adriana $100,000 upon Dorothy’s death and sought a declaration that an agreement called the Donation Agreement is not an enforceable contract.
On January 14, 2015, Shelby filed a motion to dismiss Adriana’s counterclaims based on a forum-selection clause in the Private Agreement that provides for exclusive venue in the courts of Reynosa, Ta-maulipas, Mexico.
In response to the motion to dismiss, Adriana contended that (1) the forum-selection clause does not apply to her counterclaims; (2) the forum-selection clause is unreasonable and unjust in light of a preexisting fiduciary relationship between Shelby and Adriana, where the agreement was made, where the parties resided, and the unacceptability of the Mexican forum; (3) the forum-selection clause is unenforceable because it was procured through fraud and overreaching by Shelby; and (4) Shelby waived his right to enforce the forum-selection clause by litigating Adriana’s counterclaims in the trial court for a year without invoking the clause.
The trial court held a hearing on Shelby’s motion to dismiss on February 12, 2015, and signed the order denying Shelby’s motion on February 18, 2015.
II.Mandamus Standakd of Review
To be entitled to mandamus relief, a relator must demonstrate (1) the trial court clearly abused its discretion; and (2) the relator has no adequate remedy by appeal. In re Reece,
III.Scope of the Forum-Selection Clause
Shelby argues that most of Adriana’s claims fall within the scope of the
Forum-selection clauses are generally enforceable and presumptively valid. In re Laibe Corp.,
The court must first determine whether the claims fall within the scope of the forum-selection clause. Deep Water Slender Wells, Ltd.,
In construing a contract, we must ascertain and give effect to the parties’ intentions as expressed in the writing itself. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am.,
The Private Agreement between Eduardo and Sylvia provides the following, in relevant part:
First. Regarding “THE TRUST” The parties recognize the validity and scope of the “TRUST”, and in this'regard they are in agreement with all its terms and conditions, and therefore declare that the agreement is the final and definitive will of the parties, and therefore, they comply with all terms and agree that the shares contributed to it are to be transferred to the designated beneficiaries.
Second. Payment to ADRIANA LON-GORIA KOWALSKI. It is the will of her father that the amount of $3,000,000.00 (three million U.S. dollars) be delivered to his daughter ADRIANA LONGORIA KOWALSKI, from the operating cash flow generated by the companies represented by the shares contributed to the “TRUST”, or by their subsidiaries, and therefore it is the obligation of EDUARDO AND SHELBY LUIS LONGORIA KOWALSKI in the terms mentioned below:
On the date this Agreement is signed, the balance to be delivered to ADRIANA LONGORIA KOWALSKI, in terms of the preceding paragraph, amounts to the sum USD $2,069,100.00 (two million sixty-nine thousand one hundred U.S. dollars), according the statement of account that is attached hereto.
By virtue of the foregoing, an- annual amount of $150,000.00 (one hundred fifty thousand U.S. dollars) of principal and interest will be given to ADRIANA LONGORIA KOWALSKI, in monthly installments of $12,500 (twelve thousand five hundred U.S. dollars) until the complete payment of the balance referred to above. In addition, the balance payable shall earn a ndrmal interest rate 'of 75% (seventy-five percent) of the “prime rate” published by the Wall Street Journal.
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Third. Final and Definitive Will of the Parties. The parties state that this Agreement is the final and definitive will of . the parties; therefore, they are in agreement with all its terms, further stating that there is no mistake, fraud, bad faith, or any defect of will that might affect their understanding or decision regarding the content.
The TRUST’S obligation to deliver the mentioned quantities to ADRIANA LONGORIA KOWALSKI, in the terms set forth herein, shall continue in effect until full payment, acknowledging that, after payment of the amounts referred to in this Agreement, ADRIANA LON-GORIA KOWALSKI shall be satisfied in relation to any present or future obligation charged to the “TRUST” assets or to those of Messrs. EDUARDO and SHELBY LUIS LONGORIA KOWAL-SKI.
Fourth. Jurisdiction and Mexican Law. This Agreement is established under the jurisdiction and laws of the United Mexican States. Therefore, the parties exclusively submit to the laws of Mexico, thus they expressly waive the application of any law, regulation, provision or rule of any jurisdiction other than Mexico, which might correspond to them due to their residence, paternity, citizenship, domicile, kinship or commercial relationship. Therefore, in the event of any interpretation, dispute, or any aspect related to this Trust, they expressly submit to the court of the city of Reynosa, Tamaulipas, Mexico. Likewise, the issuance of any law, regulation or provisions in jurisdictions outside the Republic of Mexico, or any act performed outside the national territory by any party seeking to (i).impose restrictions on this Agreement or to impose the performance of acts differentfrom the purposes for which it is authorized[;] (ii) impose taxes, duties-or tax burdens other than those under Mexican Law; (iii) expropriate, limit, confiscate, seize, dispose of, freeze or otherwise affect the rights of the Agreement based on federal, state or municipal laws,' outside the jurisdiction of the Republic of Mexico, shall not apply to this Agreement, in all cases the jurisdiction and laws of the Republic of the United Mexican States being applicable under the terms of the previous paragraph.
Having seen and read the foregoing, the parties sign it in the city of Reynosa, Tamaulipas, on DECEMBER 17th, 2002.
The Fourth Clause of the Private Agreement contains two paragraphs that address the choice of forum and choice of law provisions. The first paragraph provides the following, with respect to the forum selected by the parties: “in the event of any interpretation, dispute, or an aspect related to this Trust, they expressly submit to the courts of the city of Reynosa, Tamaulipas, Mexico.”
Adriana contends that the forum-selection clause does not apply to the Private Agreement because it specifically applies to the Afirme Trust. Eduardo created the Afirme Trust, into which he placed his and Dorothy’s shares of the Mexican compa-' nies. The Third Clause of the Private Agreement expressly states that the source of the payments made to Adriana under the Agreement was the Afirme Trust. Adriana specifically alleged that (1) Shelby induced Eduardo into entering various transactions that would increase his own inheritance while decreasing the inheritances of Wayo, Sylvia, and Adriana; and (2) Shelby induced Eduardo into entering the Private Agreement and into believing that this would be a fair allocation of his ■ estate.' Adriana further asserted that Shelby did not make the required payments from the Afirme Trust, but from Eduardo’s funds and then from Dorothy’s funds after the death of Eduardo. Shelby ceased making any payments in October 2010.
.In the First Clause of the Private Agreement, Adriana recognized the scope and validity of the Afirme Trust and that the Mexican companies.held in the Trust would be the source of money to make the payments to her under the Private Agreer ment. Adriana acknowledged this in her response to the mandamus petition.
The Afirme Trust is the designated source of funds to pay Adriana under the Private Agreement. Without the Afirme Trust, there would be no causes of action against Shelby for interference with inheritance rights, tortious interference with the Private Agreement, breach of his contractual obligation to perform the Private Agreement, or breach of his fiduciary duty related to the purported trust relationship created by the Private Agreement.
Adriana contends that, even if the forum-selection clause applies to the Private Agreement, which she implicitly conceded would encompass her claims for tortious ■interference with the Private Agreement and breach of the contractual obligation to perform the Private Agreement, it still' does not apply to her claim for tortious interference with inheritance rights. Adriana has focused on the foium-selection clause as applying to the Private Agreement. As explained above, the forum-selection "clause is applicable to Adriana’s claims because she would have no grounds for her allegations without the Afirme Trust.
Adriana does not address her claim for breach of the fiduciary duty that allegedly arose prior to the existence of the Private Agreement. We, nonetheless, address whether Adriana’s pre-contractual tort claim is subject to the forum-selection clause. This court and other courts have held that fraud-in-the-inducement claims can be subject to a forum-selection clause because it is a dispute involving the parties’ agreement. See, e.g., Clark v. Power Mktg. Direct, Inc.,
As explained above, the forum-selection clause is very broad, encompassing “any interpretation, dispute, or any aspect related to this Trust.” “When all the claims arise out of the parties’ contractual relations and implicate the contract’s terms, the forum selection clause will encompass all the causes of action relating to the agreement.” My Café-CCC, Ltd.,
Adriana further asserts that the forum-selection clause does not apply to her claim for breach of the promise between Shelby and Dorothy to pay her $100,000 upon Dorothy’s death. Shelby concedes that Adriana’s claim for the breach of the promise to pay her $100,000 upon Dorothy’s death does not fall within the scope of the forum-selection clause.
In summary, we hold that the forum-selection clause applies to Adriana’s claims for (1) tortious interference with inheritance rights; (2) breach of fiduciary duty; (3) tortious interference with the Private Agreement; and (4) breach of the contractual obligation to perform the Private Agreement. The forum-selection clause, however, does not apply to Adriana’s claim that Shelby breached the agreement to pay Adriana $100,000 upon Dorothy’s death and, based on this record, we cannot say that Adriana’s claim that Shelby breached the Donation Agreement falls within the scope of the forum-selection clause.
V. Objections Raised by AdRiana
A. Adriana’s Objections to the Mandamus Record
Adriana complains that Shelby cites, in his mandamus petition, materials that were not presented to the trial court in connection with the motion to dismiss, which, therefore, should not be considered in the mandamus proceeding. Adriana refers to most of the items contained in the mandamus record filed by Shelby, including pleadings filed by the parties, a motion to quash, the reporter’s record of the hearing on a previously denied motion to dismiss for forum non conveniens, and filings related to the motion to dismiss for forum non conveniens. The trial court stated in the order that it considered, among other things, “the pleadings on file.” Moreover, a relator must file a “certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding.” Tex. R.App. P. 52.7(a)(1). There is nothing improper about the items Shelby included in the mandamus record, and we are not aware of any authority for penalizing a relator for erring on the side of over-inclusion in connection with a mandamus record. Therefore, we reject Adriana’s contention that we cannot consider most of the items in the record in our review of the mandamus petition.
B. Objections to Evidence Attached to the Motion to Dismiss
Adriana objected' to Exhibits 3 and 3A, which were the October 15, 2002 “Banca Afirme Fideicomiso No. 194-2”, the Afirme Trust, and a certified translation of the Afirme Trust, respectively. Johnny Carter, one of Shelby’s attorneys, stated,.in his affidavit submitted in support of Shelby’s motion to dismiss, in relevant part:
5. Attached as Exhibit 3 is a true and correct copy of a document dated October 15, 2002 titled “Banca Afirme Fidei-comiso No. 194-2.”
6. Attached as Exhibit 3A is a true and correct copy of a certified translation of Banca Afirme Fideicomiso No. 194.2.
Adriana argued that Carter did not testify that Exhibit 3 was a true and correct copy of the original or that he had personal knowledge of the execution or terms of the original, and, because Exhibit 3A was a translation of Exhibit 3, Exhibit 3A could “havé no better claim of authenticity than Exhibit 3.” Adriana requested that the trial court strike and disregard Exhibits 3 and 3A.
Shelby asserts that Adriana waived her objections to Exhibits 3 and 3A because she did not obtain a ruling from the trial court. Shelby contends that Rule 166a standards for summary judgment proceedings govern the motion to dismiss for improper venue. See Tex. R., Civ. P. 166a. Courts look to cases on arbitration for guidance on forum-selection clauses. See, e.g., Smith,
In the arbitration context, the trial court conducts a summary proceeding to determine the applicability of an arbitration clause based on the parties’ affidavits, pleadings, discovery, and stipulations. In re Estate of Guerrero,
Under the summary judgment standard, copies of documents must be authenticated to constitute competent summary judgment evidence.’ Id. at 703. A properly sworn affidavit stating that the attached documents are true and correct copies of the original authenticates the. copies so they may be considered as summary judgment evidence. Id.
A defect in the form of authentication of documents, i.e., a defect in the affidavit attempting to authenticate the attached documents, is waived without an objection in, and a ruling from, the trial court. Id. at 706; see also Hicks v. Humble Oil & Ref. Co.,
Adriana asserts that the trial court implicitly sustained her objections'by denying Shelby’s motion to dismiss. Shelby responds that a ruling on the merits of a summary judgment motion is not an implicit ruling on evidentiary objections to summary judgment evidence and the prevailing party cannot avoid waiver of its evidentiary objections by arguing that it received a favorable ruling on the merits of the motion. See Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P.,
Even if the summary judgment procedure were not followed in the context of a motion to dismiss for a forum-selection clause, to preserve a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion that was sufficiently specific and the trial court (1) rilled on the request, objection, or motion either expressly or implicitly or (2) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal. Tex.R.App. P. 33.1(a). There is nothing in the record to suggest that the trial court implicitly ruled on Adriana’s objections to Shelby’s exhibits submitted in support of his motion to dismiss. At the hearing, there was argument concerning the Afirme Trust, but Adriana did not object to the authentication of the Afírme Trust.
Adriana also objected to Exhibit 4 to the motion dismiss, which was the affidavit of Shelby’s Mexican law expert, Dr. Carlos Gabuardi, and in particular paragraph 4, subparagraphs b, c, and d; and paragraphs 11-19 because they contained opinions of the meaning and legal effect of the ordinary terms of a contract, which are questions of law for the court, and the parol evidence rule prohibits the admission of extrinsic evidence that alters the terms' of a written contract. Adriana further objected that the remainder of Gabuardi’s affidavit was irrelevant, asked the trial court to sustain her objections, and strike and disregard Gabuardi’s affidavit.
An objection to a defect in the substance of an affidavit may be raised for the first time on appeal. Pipkin v. Kroger Tex., L.P.,
Even though Adriana did not waive her objections to Gabuardi’s affidavit, we need not address her objections in light of the well-settled rules for contract construction. We have considered the interpretation of the forum-selection clause as a question of Taw, reviewing the trial court’s interpretation de novo, without considering parol evidence. See David J. Sacks, P.C.,
' VI. AdRiana’s Defenses to the ENFORCEABILITY OF THE FORUM- ■ Selection Clause
A. Whether thé Forum-Selection Clause is Unreasonable or Procured by Fraud
Adriana argues the .forum-selection clause in the Private Agreement is
No duty of disclosure arises without evidence of a confidential relationship. Ins. Co. of N. Am. v. Morris,
However, a party who signs a contract is presumed to know its contents and its legal effects. Profit Assocs., Inc.,
Adriana, in her affidavit in support of her response to Shelby’s motion to dismiss, claimed that “Shelby discouraged me from reading the ACUERDO PRIVADO. He did not say to me that it contained a clause saying that I submitted to the courts of the city of Reynosa, Tamaulipas, Mexico in the event of any interpretation, dispute, or other aspect of the ACUERDO PRIVA-DO, or words to that effect, and I have had no such understanding, either when I signed it or since then.” Adriana does not claim that Shelby prevented her from reading the forum-selection clause. An allegation that Shelby merely “discouraged” her from reading the Private Agreement before she signed it is not sufficient to establish fraud. See id. at 923-24 (rejecting relator’s argument that forum-selection clause was procured by fraud or overreaching because relator was not shown the clause); U.S. Home Corp.,
Here, Adriana’s claim that she trusted Shelby as fiduciary to tell her that the forum-selection clause would negate a potential cause of action for breach of fiduciary duty in Mexico, does not render a forum-selection clause unenforceable. See id. (holding parties, who did not read the forum-selection clause before signing the agreement because they had instructed the attorney to change the clause and trusted him to do so, were charged with knowledge of the forum-selection clause). Not being able to bring certain causes of action in the designated forum is not a reason to avoid enforcement of a forum-selection clause. Lyon Fin. Servs., Inc.,
Moreover, Adriana has not shown any evidence that Shelby knew that she would not be able to maintain claims for breach of fiduciary duty based on an informal confidential relationship under Mexican law. A claim based on the failure to disclose information necessarily presumes that the party with the duty to speak has knowledge of the facts. Cf. Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos.,
Adriana has not shown that Shelby had a duty to disclose to her the forum-selection and choice-of-law provisions in the Private Agreement and their consequences. Adriana further has not demonstrated that the forum-selection and choice-of-law provisions were procured by fraud or overreaching.
B. Whether Reynosa, Tamaulipas, Mexico is a Seriously Inconvenient Forum
Adriana further contends that the forum-selection clause is unenforceable as seriously inconvenient such that she will be denied her day in court because the specified forum — Reynosa, Tamaulipas, Mexico — is “one of the most -dangerous places in the world.” When inconvenience in litigating in the chosen forum is foreseeable at the time of contracting, the challenger must show that the 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. ADM Inv. Servs., Inc.,
Relying on forum-non-conveniens cases, Shelby contends that purported dangerous conditions are not sufficient to avoid enforcement of a forum-selection clause- in the absence of evidence that such conditions have an adverse impact on the operation of the judiciary.
Under these circumstances, Adriana has not shown that litigating in Reynosa is so gravely difficult and inconvenient that she will for all practical purposes be deprived of her day in court.
C. Waiver of the Right to Enforce the Forum-Selection Clause
Adriana asserts that Shelby has waived his right to enforce the forum-selection clause. Adriana pleaded four of her six counterclaims on January 9, 2014, and added two claims in her amended pleadings on December 11, 2014, February 5, 2015, and February 11, 2015. Shelby litigated those four original causes of action for a year, including pleading affirmative defenses based on Texas law, before seeking dis
A party may waive the right to enforce a forum-selection clause. Boehme,
Waiver is primarily a,function of intent and requires either the intentional relinquishment of a known right or intentional conduct inconsistent with claim-, ing that right. Crosstex Energy Servs., L.P. v. Pro Plus, Inc.,
Adriana contends that Shelby substantially invoked the judicial process by deposing her and serving her with written discovery requests and by. having his own deposition taken and responding to Adriana’s discovery requests. These limited actions do not establish that Shelby substantially invoked the judicial process such that he waived his right to enforce the forum-selection clause. See In re Vesta Ins. Grp., Inc.,
Adriana also asserts that she has been prejudiced by Shelby’s delay in seeking to enforce the forum-selection clause. Mere delay in moving' to enforce the forum-selection clause does not constitute waiver. Cf. Richmont Holdings, Inc.,
Adriana contends that Shelby gained an advantage in this litigation by questioning her at her deposition about the Private Agreement and payments made pursuant to it. Shelby responds that he had been seeking to take Adriana’s deposition since June 2013, several months prior to Adriana filing her counterclaims. Shelby's counsel questioned Adriana about the Private Agreement because Adriana had initiated changes to Dorothy’s will due to her dissatisfaction with the payments she received pursuant to the Private Agreement. Adriana cannot show prejudice from any discovery request's to which she responded as she chose to litigate in a forum not agreed to by the parties. See In re Automated Collection Techs., Inc.,
VII. Conclusion
We hold that Adriana’s claims for tor-tious interference with inheritance rights, breach of fiduciary duty, tortious interference with the Private Agreement, and breach of the contractual obligation to perform the Private Agreement fall within the scope of the forum-selection clause, but Adriana’s claims for breach of the agreement to pay her $100,000 upon Dorothy’s death and breach of the Donation Agreement do not. We further hold that Adriana has not established that the forum-selection clause was procured as a result of overreaching or fraud, that Reynosa, Tau-malipas is a seriously inconvenient forum, or that Shelby waived his right to enforce the clause.
Thus, the trial court abused its discretion by denying Shelby’s motion to dismiss based on the forum-selection clause contained in the Private Agreement as to Adriana’s claims for tortious interference with inheritance rights, breach of fiduciary duty, tortious interference with the Private Agreement, and breach of the contractual obligation to perform the Private Agreement, and Shelby does not have an adequate remedy by appeal. The trial court did not abuse its discretion by denying Shelby’s motion to dismiss as to Adriana’s claims for breach of the agreement to pay her $100,000 upon Dorothy’s death and breach of the Donation Agreement.
Accordingly, we conditionally grant the petition for writ of mandamus, in part, and direct the trial court to vacate its February 18, 2015 order to the extent that it denies Shelby’s motion to dismiss as to Adriana’s claims for tortious interference with inheritance rights, breach of fiduciary duty, tortious interference with the Private Agreement, and breach of the contractual obligation to perform the Private Agreement, and dismiss those claims. We deny the remainder of the petition as to Adriana’s claims for breach of the agreement to pay her $100,000 upon Dorothy’s death and breach of the Donation Agreement. The writ will issue only if the trial court fails to act in accordance with this opinion.
Notes
.Adriana does not explain in her third amended petition what the Donation Agreement is or identify the parties to it.
. Shelby contends that, as a non-signatory to the forum-selection clause, he can enforce the clause under estoppel principles. Even though Adriana has not argued that Shelby cannot enforce the forum-selection clause in the Private Agreement based on the fact that he is not a signatory to the Agreement we, nonetheless, address this issue.
Equitable estoppel theories allowing non-signatories to enforce arbitration agreements also apply to forum-selection clauses. Deep Water Slender Wells, Ltd. v. Shell Int’l Exploration & Prod., Inc.,
. Emphasis added.
. The choice-of-law clause was not the subject of Shelby's motion to dismiss.
. .See, e.g., Paolicelli v. Ford Motor Co.,