*1 323 render ject-matter jurisdiction that could distinguished between “exhaustion” Court void). “presentment” statutes: Moreover, jurisdic- as treating this issue (cid:127) adminis- requiring exhaustion of statutes purpose. Legislature’s tional defeats jurisdiction upon remedies confer trative sixty days try getting Instead agency to resolve dis- administrative litigation, without resolve this case policy; of fact and puted issues year fight- spent more than a parties have or failed to Ms. Rivera did ing over what (cid:127) give a requiring presentment statutes in- Legislature I do not believe the do. governmental defendant notice statutory game; a to make this tended it claim and an to settle opportunity tossing purpose had a besides deadlines litigation. without too filing of court for out whistleblowers (Tex.1998) 188, (per cu 189 early. riam). pur these Because of different trial I with the Court agree with the former is poses, comply failure keep But I would not court did err. jurisdictional, comply but failure to with Thus, I any longer. air up this ball not. the latter is Id. only judgment. concur the Court’s requires 554.006 a claimant to Section complete grievance. a initiate but not
Thus, squarely presentment falls Even Ms.
category. assuming Rivera
failed initiate grievance, proper her wait the
remedy would be to make sixty that is
statutory days. Because what did, affirm, I
the trial court would whether COMPANY, THE COURAGE properly grievance. or not she initiated L.L.C., Appellant, this Treating issue as v. merely prolongs dispute. majori- this ty as allegations takes Ms. Rivera’s true CORPORATION, THE CHEMSHARE today, longer if but will no case Appellee. pursues plea the school district sum- No. 14-00-00798-CV. mary at judgment trial. See Bland Blue, Independent Dist. v. School Texas, Appeals Corut (Tex.2000) 547, (holding S.W.3d (14th Dist.). Houston necessary to de- should hear evidence Aug. 2002. jurisdiction). subject-matter Will termine if subject-matter evaporate our Dissenting Opinion Revised make the con- jury 27, 2002. finds Rivera did not Nov. alleges? precisely why This tacts she Rehearing Nov. Overruled jettisoned the Supreme no-sub- jeet-matter-jurisdiction approach pres- like one. this See prerequisites
entment Kazi, 12 v. S.W.3d
Dubai Petroleum Co. (Tex.2000) (holding compliance 75-76 statutory should no prerequisites as a matter sub-
longer be addressed
entitled to enforcement (1) following Texas for the reasons: system provide proce- did not compatible process dures with due because (2) trials; provide jury did personal District did not have (3) ChemShare; over Cour- age’s cause of action was repugnant (4) Texas; public policy (5) arbitration; agreed to submit Japan a seriously inconvenient forum *4 (6) ChemShare; Courage and failed to with comply procedural requirements Country of the Foreign Texas Uniform Money-Judgment Recognition Act (“UFCMJRA”) by failing provide a of properly authenticated translation judgment. Because the arbitration, agreed to submit affirm we ground on that do not reach Courage’s and other issues.
PROCEDURAL BACKGROUND August In Courage, Virginia of a company, liability limited sued ChemShare Winsim, Inc., company, and another both corporations, in Texas the District Court Mihalick, Allyson Nobles, L. Jeff Hous- Tokyo, Japan. Courage sought of restitu- ton, appellants. for million over owed allegedly $1.2 agreement ChemShare under an known as Anderson, David K Julie Cunning- B. DesignMASTER Development Agree- ham, Houston, appellees. for (Development Agreement). Courage ANDERSON, Panel consists of Justices brought shortly obtaining the suit after HUDSON, and EDELMAN. in interest In-
assignment from Information Services (“ISI-Dent- ternational-Dentsu, Limited MAJORITY OPINION su”), originally a Japanese company that ANDERSON, JOHN S. Justice. into the agreement entered ChemS- an appeal County This is from a Harris reply hare. ChemShare filed a in To- recogni- judgment denying district court’s Court, jurisdiction- kyo asserting District a a foreign money judgment tion of defense, contesting Courage’s standing al appellant, Company, The L.L.C. suit, bring raising forum non (“Courage”) against appellee, obtained objections. conveniens The record dis- (“ChemShare”) in Corporation ChemShare no other appearance closes Tokyo, Japan. the District Court of Cour- prior pronouncement of the age challenges the district court’s determi- District Court’s on December Japanese judgment nation that the was not corporation designed Tokyo District was a Texas judgment,
In its rejected programs software developed simulation challenge pay and ordered ChemShare and refineries. plants in chemical used $1,080,977.49, together with inter- en- Japanese company was a ISI-Dentsu $730,054.02, payment on est down design in busi- computer-aided gaged court costs. The court portion In and ISI-Dent- ness. against Win- dismissed claims in agreement, su into distributor entered sim, jurisdiction. Inc. lack parties agreed ISI-Dentsu filed a Notice of Courage subsequently simulation would distribute ChemShare’s Foreign support- Filing Judgment and to ISI-Dentsu’s custom- software products District County affidavit the Harris ing would re- and ChemShare Japan, ers judg- Court to obtain ISI-Dentsu’s royalty payments ceive filed a response, ment. products. sales of ChemShare’s Nonrecognition of Foreign Motion for Country Money Judgment, two alleging of the initial expiration Following mandatory discretionary three 1991,1 ChemS- distributor grounds nonrecognition continued to conduct hare UFCMJRA, alleging and further *5 they in the while past had done business as satisfy procedural failed to the agree- negotiated a new distributor they of In requirements the UFCMJRA. an had ChemShare created a software ment. 5, 2000, order dated June the trial court known as program DesignMASTER motion, granted holding that integration provided system process Tokyo the by the rendered Dis- tasks, pro- engineering ISI-Dentsu 3, trict Court on December 1999 was re- modify and posed en- that ChemShare fused enforceable DesignMASTER program based hance in Texas. by ISI-Dentsu. specifications provided trial or for re- Courage moved new 1991, In and ISI- November of re- consideration the trial court’s order DesignMASTER entered into Dentsu fusing recognition, court trial (the “Develop- Development Agreement Courage’s request, At the trial denied. in Agreement”), which ISI-Dentsu findings of fact and conclusions court made of portion cover a the costs agreed to of law. adopted Because and en- development with the associated proposed of fact and conclusions findings DesignMASTER prod- ChemShare, hancement by of law submitted The objected to a number of them. trial royalties would be prepaying ucts objections, amend- court overruled the but under the new distribu- due ChemShare findings of fact and conclusions of ed anticipated future agreement for previously to correct several law entered products. The De- sales of ChemShare’s typographical errors and to correct provided as follows: velopment Agreement of of law identification a conclusion developments All enhancements finding appeal of fact. This followed. by ChemShare shall be made hereunder
FACTUAL BACKGROUND enhancement of De- to be the deemed under the Distributor signMASTER disposition The to the of facts relevant shall be [ISI-Dentsu] are thus appeal this as follows. ChemShare' January expired at the end of According Courage’s pleading filed in 1. Court, original distributor District 1991. granted agreement, same distri- new The entitled “Distribution bution in Japan of the enhance- Agreement,” was dated June and developments Design- ments of of April retroactive effective date currently MASTER as exist under the 1991. proposed Agreement. Distributor In contrast Development Agree- Development The Agreement provid- also ment, provid- Agreement
ed that to complete ChemShare was “any ed for arbitration of differ- of development DesignMASTER in accor- of arising relating ence out to this dance with a development schedule that Agreement.”2 Arbitration was to be held in contemplated completion 1992. June of according to the Rules of Conciliation and pay ISI-Dentsu in Arbitration of the International Chamber accordance with an attached disbursement In the Commerce. event that ChemS- contemplated payments schedule that from dispute, hare initiated a the arbitration through November October Tokyo, was to be Japan. held Development The Agreement recited that event a dispute, initiated payments prepayment were “a the arbitration towas be to be held in portion royalties by [ISI- to be remitted Houston, case, Texas. In either the arbi- Dentsu] ChemShare the Distribu- English tration was to be held lan- tor Agreement.” guage, agree- the construction of the Development Agreement contained ment was to be governed by Texas law. provision choice law specifying provided The Distribution also gov- “shall be that its superseded terms and conditions erned and construed previous agreements accordance those all between *6 of Japan.” laws It also respect contained ChemShare and ISI-Dentsu with forum providing Further, selection clause agree- as follows: to the “Products.”3 was assignable prior ment without hereby irrevocably
ChemShare and un- written consent of ChemShare. conditionally to submits the non-exclu- sive Tokyo of the District In ISI-Dentsu decided to with- Court, claim, any in relation to computer-aided draw from the engineering or may difference which arise under this business in the industry chemical and noti- Agreement, prejudice but without to the fied to ChemShare of its decision start rights any of to [ISI-Dentsu] commence phasing out of ChemShare’s business. legal action or proceeding the courts ISI-Dentsu demanded restitution of the any jurisdiction. of competent other to prepayments that had made Chem- Following Develop- of the Development Agreement execution Share under the Agreement, ment outstanding ChemShare and ISI- that were at allegedly completed negotiations Dentsu of the time. ChemShare and ISI-Dentsu decid- terms of new distributor agreement. relationship, ed to terminate their business A, excep- Appendix by The arbitration clause contained an are owned licensed or tion for the violation or threatened violations ChemShare its are of- licensors and and/or agreement's confidentiality provisions of the by fered for sale ChemShare’s Advanced En- proprietary rights, or ChemShare’s neither of gineering are Software Division and to be which is relevant here. pursuant sublicensed to the [ISI-Dentsu] Agreement.” Appendix terms of this A in- Agreement, 3. Under the "Prod- DesignMASTER cludes software. programs ucts” refers "the software related documentation and services listed ap- grounds. a Termi- non conveniens in March executed obtain was unable to parently the Termi- Agreement. nation Under it, made no represent parties agreed legal counsel Agreement, nation Agree- appearance.4 of the Distribution other the termination any rights “shall not otherwise affect ment re- Tokyo judgment Court’s District parties accrued or obligations of the was heard on argument oral flects that prior to termination.” vested claims, judgment was Courage’s In a three-judge panel. 1,1998, by a transferred rendered On ISI-Dentsu June District Court opinion, Tokyo right, of detailed assigned “all its argu- rejected ChemShare’s and interest in and to the title ment, provision in of the primarily and claims because rights with other together Agreement which the Development have against otherwise [ISI-Dentsu] disputes submit parties related Chem- Tokyo Dis- jurisdiction of “Agreement” defined as nonexclusive Share.” The evidence that the Agree- trict Court. There DesignMASTER Development with a agreements Tokyo provided District “together with all other Court Agreement, which copy related or collateral of the Distribution with ChemShare thereafter, arising or re- disputes from Shortly Courage, provided thereto.” conclu- lating were Virginia liability company limited with Rejecting sively of in the arbitration. principal place business United settled jurisdictional arguments, the States, filed its lawsuit in the District ChemShare’s in favor found of Tokyo, seeking to recover District Court Japan, claim for restitution and prepayments Courage than million in on its more $1.2 accordingly. Defen- judgment entered its made Winsim, Inc., however, was dismissed Agreement. At the time dant jurisdiction. lawsuit, from lawsuit for lack principal place Land, Sugar was located in business from To- Armed County, Bend Fort Texas. Court, sought recog- kyo District lawsuit, it in the judgment by filing nition response ChemShare, County, Texas. and its co- district court of Harris on behalf itself *7 defendant, Inc., filing and Winsim, objected to requested first judgment, legal nonrecognition moved for continuance to enable to obtain mandatory two and three discre- noting “special asserting cir- Japan, counsel tionary refusing recognition grounds that plaintiff cumstances” both and UFCMJRA, additionally and as- were under the companies, defendants United States counsel, filing procedurally locating serting difficulty Japanese receiving Courage’s re- defective. After and the inconvenience the defendants. motion, court the district sponse then for the limited appeared motion for nonrec- granted de- ChemShare’s purpose asserting reflecting and an order fense, standing ognition, entered question Courage’s judg- lawsuit, objec- was refused and the an bring the assert ment not enforceable Texas. Japanese forum on forum tion to the based contended, charged attorney’s high and retainers the Harris fees 4. ChemShare found, it was un- County Japa- attorneys practice District Court in the licensed to attorney represent com- able hire nese courts. Japanese litigation pany in the because 330
DISCUSSION Co. v. Energy Corp., Baker Res. 702, 706 S.W.2d (Tex.App.-Houston [1st appeal, Courage On asserts that the dis- denied). 1998, pet. Dist.] is It enforceable trict in granting court erred in the judgment same manner as a of a motion nonrecognition for the following (1) sister state entitled to full faith and reasons: of a credit. jury absence trial Id. prevent recognition does not and en- a foreign country forcement of judgment; Section 36.005 forth sets three (2) jurisdic- ChemShare consented mandatory seven discretionary tion of the District Court in the grounds for of a nonrecognition foreign Development Agreement appeared be- country judgment; these the only are de (3) merits; fore the on the Courage fenses available to a judgment debtor. had a valid cause of action it re- Balaam, (Tex. Dart v. by assignment ISI-Dentsu; ceived from 1997, writ); App.-Fort Worth Tex. Civ. (4)there was no binding agree- arbitration § Prac. & Rem.Code Ann. 36.005. In the pertaining disputes to the resolved court, district ChemShare raised the fol (5) by the Japanese judgment; Japan was lowing mandatory grounds two in support seriously not a inconvenient forum for of its for nonrecognition: motion ChemShare because it juris- consented to (a) (6) foreign A country judgment diction; is not complied with all if: conclusive procedural requirements En- because the glish translation of the original Japanese (1) judgment was rendered under judgment, together judgment, with the a system that not provide does constituted an official document of the To- procedures impartial tribunals or kyo District Court that requires no further compatible requirements with the authentication. law; process of due brief, response ChemShare con- (2) foreign country court did not ceded that sixth issue had been personal have over the rendered moot the district court’s find- defendant. ing properly had filed a au- (2). 36.005(a)(1), §Id. copy thenticated judg- ChemShare also raised three discretion- ment, along with an English translation of ary grounds: the judgment apostil, and the and its order (b) A foreign country judgment need directing supplement clerk to not be if: recognized clerk’s on appeal record with the docu- ments. We will proceed therefore (3) the cause of on which action remaining issues. repugnant based is *8 state; public policy of this
1. The UFCMJRA (5) proceeding in the foreign governs The UFCMJRA the recog country contrary court was to an foreign money nition of country judg parties between the ments. Civ. Tex. Prac. & Rem.Code Ann. which the in ques- (Vernon 1997). § 36.001-.008 When rec tion was to be settled otherwise ognition is not a contested or contest is court; by than in that proceedings overruled, foreign judgment a country is (6) conclusive parties jurisdiction between the ex the ease of based service, tent that grants personal it or denial recovery only of a on the for- sum money. Reading & Bates Constr. a eign country seriously court was
331 challenged each Courage has appeal, for the trial of On inconvenient forum in the by grounds urged ChemShare the action. court, because we find that but district (6). (5), 36.005(b)(3), § Id. ground affirmed on be arbitration, had parties that the party seeking to avoid rec remaining issues. we do not address a proving has burden ognition Dart, nonrecognition. 953 ground for Agreed Arbitration The Parties 2. 480; Livestock at Southwest S.W.2d issue, at Courage’s fourth In Co., Ramon, Trucking Inc. v. 169 F.3d court’s determination tacks the district Cir.1999). (5th judg 320 Unless not enti judgment was Japanese that the of proof satisfies his burden ment debtor proceeding recognition because tled specific establishing or more of the by one an contrary to court was in the grounds nonrecognition, the court is ISI- agreement between ChemShare country required recognize foreign were to be disputes under which Dentsu Dart, A 953 at 480. judgment. S.W.2d by resolved arbitration. See Tex. Civ. precluded from collat judgment debtor is 36.005(b)(5). § & Rem.Code PRAC. Ann. erally attacking foreign judgment a when that, Develop argues under the Courage foreign litigated an issue was before irrevocably ment opportu party given or the agreed to submit nity litigate the issue before that court. maintains Tokyo District Court. nonrecognition may be Id. Grounds not Agreement did that the Distribution party waived if a assert agreement, the Distribu alter this because objection as ground defense De supersede the did not tion foreign country court but failed to do in time or velopment so. Id. matter, the Distribution and because by terminated Agreement was ruling We review trial court’s assigned rights before country foreign judg on of a argues, Additionally, Courage Courage. de Reading novo. & Bates Constr. any right to arbitration waived Co., Notwithstanding S.W.2d at 708. 976 it in the not raise because it did the reasons stated the trial court District Court.5 conclusions, we findings uphold will a. The and Distribu- ground the district court’s order on Agreements to- must be construed is supported the record. See gether. Stevens, 757, 760 re S.W.2d first turn to the substance orig. proceed- We (Tex.App.Beaumont trial court Courage’s argument ing). writ) (stating (Tex.App.Dallas that ChemShare also asserts filing documents exhibits any right that the attachment of waived to arbitration inclusion appendices to briefs is formal against Courage in another district lawsuit therefore, and, appeal County, in 1998. in the record court of Harris Texas Moreover, considered). documents cannot objects to this assertion on the any place in the Courage does us scope of not direct grounds that the issue outside the *9 argument, waiver support to its appeal petition was record the because ChemShare's transcription oral of the contains no part appellate the record. ChemShare record not of Therefore, Courage has waived argument. copy petition to urges that the of the attached See, unsupported e.g., Peny contention. v. this Tex.R.App. brief be stricken. P. 533, Stores, 38.1(h). Kroger Store No. in granting erred the motion nonrecog- In contrast the choice of to law and nition because there was no arbitration forum selection Develop- clauses in the parties between the with re- ment the Agree- Distribution spect subject matter of the ment it provided governed that would be litigation. Courage by relies laws upon the lan- the of Texas “except specif- where guage in the ic Development Agreement provisions which with pro- conflict these are viding that made under agreed Agreement.” ChemShai-e the terms of this submit Agreement The jurisdiction provided non-exclusive of the Distribution also To- “any that or kyo dispute arising District “in difference out any relation claim, shall, relating or Agreement this difference may by unless settled mutual in arise consultation Agreement.” under this In order to faith, good conclusively settled arbi- accept by Courage’s premise, required we are ....” tration The provision arbitration view Development Agreement in a specified that in the ini- vacuum, event ChemShare by subsequent unaffected Dis- dispute, tiates a the location the arbitra- tribution A Agreement. review of the doc- Tokyo, tion shall be and if Japan, ISI- law, uments the applicable however, arbitration, Dentsu initiates the location compels opposite conclusion. event, shall inbe In Houston. either The parties into entered the Develop- arbitration shall be En- conducted Agreement ment in November while glish language and “the construction of the negotiations were continuing for a new Agreement be governed by shall laws agreement. distributor Under Devel- of the State Texas.” opment Agreement, agreed ChemShare We now turn to Courage’s substantive enhance and develop DesignMASTER arguments. Courage contends that products software in accordance with ISI- trial finding court erred in parties specifications. Dentsu’s In exchange, ISI- agreed to their disputes resolve arbitra- agreed Dentsu payments make advance tion, because Agreement the Distribution royalties that would be due ChemShare supersede did the Development Agree- agreement. the new distributor matter, ment in time Development The Agreement provided Agreement because Distribution governed that it and construed in terminated before the as- accordance the laws of Japan; addi- signment subsequent and the tionally, to submit to proceeding. response, Chem- non-exclusive argues Development Share Agree- District claim, Court “in relation to Agreement Distribution dispute or difference which arise un- together give must be construed full Agreement.” der this parties’ effect to the intentions. Chem- later,
Seven months in June argue Share does not that the Distribution ISI-Dentsu entered into Agreement revoked the contemplated Agreement. Distribution Agreement rather, entirety; con- out set tends the Distribution modified, terms and conditions governing rela- changed, or rescinded certain tionship supplier between Chemshare as provisions terms and of the Development and ISI-Dentsu as Agreement. exclusive distributor of regard With to the conflict- products, including ing ChemShare’s software provisions, choice forum DesignMASTER. provision contends the arbitration
333 ment, forum selection and they agreed to Agreement Distribution the later-executed plainly that are incon- controls. law clauses choice of Development with those of the sistent that in It is well established Therefore, question be- Agreement. to pertaining the same transac struments agreements the two involve comes whether may together be read to ascertain the they matter such that subject the same intent, even if the executed parties’ together, with the should be construed at and the the instruments different times Distribution terms of the later-executed expressly not instruments do refer each conflicting controlling Agreement over Dist. v. Indep. other. Fort Worth Sch. Development terms of Worth, 831, City Fort 22 S.W.3d 840 is Development whether the (Tex.2000); Help World v. Leisure Life separate a properly more considered (Tex. Inc., 662, 676-76 styles, 977 S.W.2d affected the sub- by not denied). 1998, A App.-Fort pet. Worth Agreement. sequent Distributor law, determine, may as a matter comprise a multiple documents writ Development Agreement clearly contract, instances, appropriate ten and in and ISI- demonstrates if may they all documents as construe anticipated entering Dentsu into new part single, of a unified were instrument. govern Agreement that would Distribution Dist., Indep. Fort Sch. 22 Worth S.W.3d Design- the distribution enhanced at 840. to the MASTER software. References Agreement appear proposed It has been stated that a difficult interpretation may when question throughout Agreement. arise with the things, a second contract deals same other ChemShare and ISI- Among following: matter the first contract made Dentsu to the parties, specify the same but not does (cid:127) developments “All enhancements or what it is whether extent intended Development Agree- [under made operate discharge or substitution. Coo deemed ment] ChemShare shall be 239, Supercinski, v. 700 per S.W.2d 243 DesignMAS- be enhancement of n.r.e); (Tex.App.-Waco writ ref'd Agree- TER under Distributor Investments, Western v. Mer Crown Inc. ment, [ISI-Dentsu] thus shall be Dallas, Nat’l Bank at cantile 504 S.W.2d granted dis- by ChemShare same (Tex.Civ.App.-Tyler 789 of the en- Japan tribution writ). case, In such the two contracts developments of De- hancements and together, must interpreted currently exist under signMASTER as inconsistent, they are the later extent Agree- proposed Distributor 243; at prevails. Cooper, one 700 S.W.2d ment. ...” Investments, S.W.2d Crown Western (cid:127) agrees pay “[ISI-Dentsu] the first con at 789. The remainder of prepayment ... as tract conflict with the second portion royalties be remitted Cooper, at 243- be enforced. ChemShare under [ISI Dentsu] Investments, 44; Western Crown Agreement.” the Distributor at 789. S.W.2d (cid:127) prepayments shall be credit-
Here, “The said parties, the same ChemShare, royalties due into ed entered both the Devel- the Dis- DesignMASTER and the Distribution opment Agree- Agreement.” tributor Agreement. the Distribution *11 (cid:127) ject “Should ChemShare’s enhancements matter —the distribution of ChemS- developments [be behind sched- products Thus, in Japan. hare’s we review
ule], prepayments the said shall be together them to determine parties’ the royalties credited with due to ChemS- intent, provi- and if the forum selection hare for all the products conflict, sions then of the the provision licensed under the Agree- Distributor Agreement later-executed Distributor will ment after given has [ISI-Dentsu] control. remedy period ChemShare a to be ” Under the Agreement, agreed upon by parties.... both Japanese law applied, and ir-
(cid:127) “In of case the termination of the dis- revocably unconditionally submitted to of prepayment speci- bursement the the non-exclusive the ISI-Dentsu], [by fied above all the claim, District Court relation prepayment by made [ISI-Dentsu] arising difference under the royal- hereunder shall be credited with Development Agreement, preju- without ties due to ChemShare for all the dice to ISI-Dentsu’s commence ChemShare Products licensed under any legal action or proceeding the Agreement Distributor after [ISI- jurisdiction. However, of any courts other has given Dentsu] reme- Agreement, under the Distribution dy period agreed to be upon by both ” that, parties agreed excep- with certain parties.... tions, any dispute arising or difference out (cid:127) outstanding “Should pre- balance of relating Agree- Distribution payment made [ISI-Dentsu] exists ment shall be conclusively settled arbi- October, 1993, at the end [sic] Thus, as specified. disputes tration aris- said prepayment shall be credited with ing Development Agreement under the are royalties due to ChemShare for all the governed by agreement, the terms ChemShare Products licensed under disputes arising or relating under Agreement.” Distributor Agreement governed Distribution are A comparison of the Development agreement. the terms of that Agreement with Agree- the Distribution ment further demonstrates their interre- At oral argument, Courage conceded lated nature. Under the Distribution agree- that “in broad sense” two appointed ISI-Dentsu was applied ments same matter. exclusive sales and service distributor for Nevertheless, Courage ar- strenuously products in Japan. In re- gued that purpose agree- two efforts, turn for its ISI-Dentsu enti- differed, ments present percentage tled to a of the net royalty only case Development Agreement revenue received from the sales of the breached, Agree- products. Development Agree- Under the Specifically, Courage argued ment. ment, pay portion Development Agreement was directed of the costs with the associated enhance- developing DesignMASTER prod- development DesignMAS- of the uct, while the Distribution software, payments TER and such were to was directed to the of the product. sales portion royalties be treated as a due DesignMASTER Because the products Agreement. the Distributor developed that were faded and were nev- sold,
Given
er
foregoing,
we find that
there
contends
were no
agreements pertain
two
to the same sub-
sales under
the Distribution
*12
prior to the Devel-
the
and was made effective
and ChemShare never earned
$1.2
(2)
breach
Agreement, and
the
sought
opment
million
to recover.
factually
alleged by Courage was
inter-
However,
do not
Cour-
agree
we
Agreement,
Distribution
twined with the
age’s
agreements
conclusion that the two
of
Devel-
alleged breach
The lan-
separate
independent.
are
and
of the
Agreement was a breach
opment
guage
Development Agreement
of the
relationship
parties
of the
that
commercial
proposed
makes clear that
enhance-
Agreement
“related to” the Distribution
ments were deemed to be enhancements
provision.
its arbitration
triggered
and
Agreement,
under the
and
Distribution
words,
so much
was not
other
royalties
prepaid by
to be
ISI-Dentsu
Develop-
of the
alleged
about an
breach
under the
royalties
were
due ChemShare
alleged
rather an
Agreement,
but
Agreement.
no ra-
Distribution
There is
agreement for the
global
of the
breach
viewing
agree-
tional basis for
the two
and distribution of Chem-
development
isolation,
fact,
ments in
after the
when
This
is fur-
products.
conclusion
Share’s
they
inextricably
are
intertwined.
so
merger
supported
following
ther
Moreover,
Courage’s
pleading
own
Agree-
in the
clause contained
Distribution
conclu-
supports
District Court
our
and
of this
ment:
terms
conditions
“[t]he
pleading, Courage expressly
In that
sion.
of all
supersede
previous
those
Agreement
and
negotiation
referred
execution
and the
Agreements between ChemShare
Agreement
alleged
and
Distribution
respect to the Products.”
Distributor with
that,
Development
under the
admission,
sought
own
it
By Courage’s
pay
aggregate
ISI-Dentsu
“would
prepayments for enhancements
return of
$1,200,000required
amount of U.S.
for the
product
that
DesignMASTER
of the
of such
functions as a
development
new
failed, enhancements that —under
contends
prepayment
portion
royalties
of a
under
Agree-
Development
of the
terms
Agreement”
(emphasis
the Distribution
ment —were deemed enhancements
added). Thus, by Courage’s own admis-
Agreement.
the Distribution
sion,
required
the resolution of
claim
to,
upon,
reference
and reliance
the Distri-
Finally, Courage argues
Agreement.
bution
Agreement
super
could not
reject
Agreement because
Additionally,
Development
we
con-
sede the
terminat
Development Agreement
Agreement
tention that the
the Distribution
However,
Agreement
the Termination
superseded by
was not
the Distribution
ed.
that the termination
Agreement
parties
specifically provided
in time because the
Agree-
Agreement
made
the Distribution
“shall
specifically
the Distribution
obligations
April
any rights
Cour-
affect
ment effective from
otherwise
counterintuitive,
prior
if
accrued or vested
age’s argument
parties
-The
of the Termi
purpose
fact that
intended
termination.”
anything,
parties
Agreement
was to document
Agreement
the Distribution
be effective nation
relationship
of the business
from that date bolsters the conclusion
termination
As
between ChemShare
ISI-Dentsu.
intended
the Distribution
Toy-
pleading
in its
in the
Courage alleged
to control to
Agreement
supersede
Court,
the two ko District
demonstrated
any provisions
the extent that
record,
ISI-Dentsu
agreements were inconsistent. Given
(1)
Distribu
termination of the
Agreement was con- discussed the
the Distribution
pre-
and restitution
templated
in the
payments allegedly
owed
ISI-Dentsu
To accept Courage’s
argument,
waiver
prior
entering
agree
into the Ter- we must first
that ChemShare actu-
mination Agreement. Any
ally litigated or
given
claims or
the opportunity
rights
against
litigate
the issue in the Japanese pro-
(and
Dart,
assigned
Courage)
ceeding.
ac-
See
337
and seek
contesting jurisdiction
response to
actions
to raise arbitration
judgments.
Id.
right
ing
its
assert the arbi-
to set aside default
lawsuit waived
Transwestern,
re
Similarly,
for nonrec-
the court
ground
tration
argument
that Transwestern
jected
District Court’s
ognition
to arbitra
right
waived the
Pipeline had
judgment.
it failed to invoke the arbitration
when
law,
right
Under Texas
filing,
prior
answer or
clause
arbitrate,
right,
like
other contractual
trial date.
setting of an initial
before the
Pipeline
waived. Transwestern
Transwestern,
Fur
at 593.
809 S.W.2d
Co.,
v. Horizon Oil & Gas
Co.
filing of a
ther,
held that the
the trial court
1991,
(Tex.App.-Dallas
592
writ dism’d
general
prevent entry of a default
denial to
Club,
Barlow,
w.o.j.);
Home
Inc. v.
in and of itself was insufficient
(Tex.App.-San
S.W.2d
Antonio
deny
Transwestern the
to later
writ).
*14
party
Whether a
has
arbitration.
Id.
compel
seek to
its
is a
right
compel
waived
arbitration
lawsuit,
reply
In its
subject
of law
to de novo review.
question
jurisdictional
presented its
ar-
Co.,
re
In Bruce Terminix
988 S.W.2d
for
guments, and moved
dismissal
(Tex.1998);
704
Transwestern Pipeline,
costs,
“Claims Pri-
section entitled
A presumption
at 193 USX v. 759 arguments more detailed re- Pending 764, 767 (Tex.App.-Houston [1st S.W.2d causes of action garding substantive 1988, orig. proceeding make, Dist.] de [leave if in this case that Defendants will )). in delay making nied] Mere an arbitra necessary, the court hands after down waiver; tion demand does not constitute it ruling regarding prior its issues merits, in only delay is when this results actual categorically Defendants it prejudice that amount to a waiver. in- by plaintiff, all claims made contest addition, Id. In the waiver of an arbitration have cluding any obli- Defendants right Corp. EZ deposit moneys must be intentional. Pawn in to return the gation (Tex.1996). Mandas, any v. 934 89 has S.W.2d or that Winsim obli- question any damages this case. gation pay Thus, Club, example, in Home parties making arbi- It that ChemShare was seeking court found that the is evident its on the merits right tration did not waive the assert claims jurisdictional objec- they special ruling court’s on its appear- arbitration when filed then, Further, special Tokyo District Court’s appear- ances and when the tions. conceded, overruled filed does not reflect that ChemShare ances were merits, answers, it arguments on responded interrogatories, and made ap- undisputed is that ChemShare did stay did not file a motion to the case reply. and defend after it entered its pear arbitration for several months. pending decision, from distinguishable is thus reaching Id. at 193. its the This case Dart, which the court found that court noted that Home Club an his assert judicial appellant had had waived advantage not taken ground for to arbitrate as a merely but had taken defensive process, non-recognition of judgment. an Australian argued neither nor demonstrated that Dart, Dart, See at 482. In prejudiced S.W.2d by any delay here. There- appellant fore, ap- made unconditional we hold that ChemShare did not pearance and filed seeking a counterclaim waive defense of arbitration because it affirmative relief in the Australian court. did not actually litigate the issue before case, Id. In present ChemShare did Tokyo forego District Court or jurisdictional not waive its arguments or opportunity to do so. Tokyo
seek affirmative relief Dis- Moreover, trict Court. finding there is no HOLDING Tokyo District Court Chem- We hold trial not err in did Share waived its arguments, determining the Japanese judgment nor Courage’s legal did expert, Satoshi was not entitled to under Tex- Ogishi, opine in his affidavit Chem- as Civil Practice Remedies Code sec- Share waived jurisdictional objections. 36.005(b)(5) on grounds that the Indeed, filings in parties had agreed to arbitration of their District Court were behalf of itself and disputes. Accordingly, we affirm the judg- Winsim, Inc., and Winsim ultimately the trial court. jurisdiction. dismissed lack of It implicit in the Tokyo District Court’s dis- EDELMAN, dissenting. J. *15 (and missal of Winsim that Chem- dissenting opinion issued this Share’s) jurisdictional objections were not 22, 2002, withdrawn, on August case is waived.7 the following dissenting opinion is issued that, given circumstances, We hold these place. in its reply Tokyo filed Dis- opinion The majority essentially holds trict Court did not its right waive to assert that a foreign judgment can be denied arbitration under Texas law. Chem- recognition ground on the that the foreign jurisdictional argument Share’s was made proceeding contrary agreement was to an prior any on response Fur- merits. dispute to settle the by pro- other than ther, reply the substantive was made ex- ceedings in foreign court1 even though pressly de- that court never apprised any was such Tokyo fense and the District Court’s ruling agreement. I disagree with this conclu- defenses, on its no and at time did Chem- sion two reasons. Share take advantage ju- the Japanese dicial process. Accordingly, First, we do not find I contrary believe it is to the rule substantially judgment invoked the a may rely debtor not on a judicial process preju- to the detriment ground nonrecognition a foreign dice judgment such that it party right, should be that the a but failed, asserting right barred from foreign to arbitra- to assert in the proceeding.2 tion; Second, nor do we that Courage similarly, find a with party a actually prejudiced on delay arbitration has choice whether to in- Indeed, part of ChemShare. has advantage voke see an in re- reasons, reject any 7. For same we asser- See Tex. Civ. Prac. & Rem.Code Ann. 36.005(b)(5) (Vernon 1997). § tion that initial ChemShare's effort seek a continuance from the District Court general Balaam, ap- constituted a or unconditional 2. See Dart v. pearance. writ). (Tex.App.-FortWorth particular in a case. framing doing from so here,
Where, failed to in- party has foreign in a claim to arbitration
voke its be said I not think it can
proceeding,3 do is con- resulting foreign judgment
that the dispute
trary an to settle never had a when that court arbitration to let the be settled
chance agreement. with the
accordance correct, par- majority holding
If
ty arguable claim to arbitration to refrain from rais-
would be well advised assure
ing foreign it in a lawsuit so as to foreign judgment would any adverse court. recognized
not in a United States supported I do not believe this is
Because the trial logic, I would affirm law Japa-
court’s denial ground
nese
Japanese proceeding contrary
parties’ agreement to arbitrate. *16 SALAZAR, Appellant,
Gregory Chavez
v. Texas, Appellee. STATE
No. 06-02-00029-CR. Texas, Appeals
Texarkana. Sept. 2002.
Submitted Sept.
Decided 2002.
Discretionary Review Dismissed
March 2003. case, gone, Japanese and the circum- court is now ChemShare's failure In this whether majority opinion show forth in the right stances set urge to arbitration in ChemShare’s loss of reason for proceeding "waiver” of other would constitute a invoke it than failure to arbitration claim the Texas case law cited in (i.e., along matters it with the other defensive majority opinion The fact is academic. chal- to its opportunity asserted Chem- remains whatever lenge). its arbitration claim in Share had assert