Halabu v. Petroleum Wholesale, LP (Tex.App.- Houston [1st Dist.] May 22, 2008)(Bland) (denial of special appearance affirmed, forum selection clause given effect)
In his sole issue, Halabu contends that the trial court erred in denying his special appearance. Halabu also asserts that the trial court should not have considered Petroleum’s late-filed affidavit by Ken Dixon.
Special appearances are governed by Rule 120a, which provides that “a special appearance may be made by any party . . . for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process by the courts of this State.” Id. 120a.
On appeal we review de novo the trial court’s determination to grant or deny a special appearance. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).
The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provisions of the Texas long-arm statute. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002). A nonresident defendant challenging the court’s exercise of personal jurisdiction through a special appearance carries the burden of negating all grounds for personal jurisdiction alleged by the plaintiff. Id.; Glattly v. CMS Viron Corp., 177 S.W.3d 438, 446 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
We review all evidence in the record to determine if the nonresident defendant negated all possible grounds. N803RA, Inc. v. Hammer, 11 S.W.3d 363, 366 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (citing Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985)).
Trial courts must frequently resolve questions of fact before deciding the jurisdictional question. BMC Software, 83 S.W.3d at 794. When a trial court issues findings of fact and conclusions of law, we may review the findings of fact on legal and factual sufficiency grounds and review the conclusions of law de novo as a legal question. Silbaugh v. Ramirez, 126 S.W.3d 88, 94 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing BMC Software, 83 S.W.3d at 794).
If the trial court does not issue findings of fact, “all facts necessary to support the judgment and supported by the evidence are implied.” BMC Software, 83 S.W.3d at 795. In other words, if the trial court does not issue findings of fact, a reviewing court should presume that the trial court resolved all factual disputes in favor of its judgment. Tri-State Bldg. Specialties, Inc. v. NCI Bldg. Sys., L.P., 184 S.W.3d 242, 246 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Coleman, 83 S.W.3d at 806; BMC Software, 83 S.W.3d at 795).
We may set aside a finding of fact only if the evidence would not enable a reasonable and fair minded finder of fact to make the finding under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
Two requirements must be met before a Texas court can exercise personal jurisdiction over a nonresident defendant. First, the Texas long-arm statute must authorize the exercise of jurisdiction, and second, the exercise of jurisdiction must be consistent with the guarantees of due process. Coleman, 83 S.W.3d at 806; Tri-State Bldg. Specialties, Inc., 184 S.W.3d at 248.With respect to personal jurisdiction, federal due process requires two things. First, the nonresident defendant must have purposefully established such minimum contacts with the forum state that the defendant could reasonably anticipate being sued there. Glattly, 177 S.W.3d at 446 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475–76, 105 S. Ct. 2174, 2183–84 (1985)). Second, if the nonresident defendant has purposefully established minimum contacts with the forum, the exercise of personal jurisdiction must also comport with traditional notions of fair play and substantial justice. Id. at 447 (citing Burger King, 471 U.S. at 475–76, 105 S. Ct. at 2183–84). As to fairness, the defendant bears the burden of presenting a “compelling case” that exercising jurisdiction over him would not be fair or just. See id. at 450.
Only in rare cases, however, will a Texas court’s exercise of personal jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state. Guardian Royal Exch. Assur., Ltd. v. English Clays, P.L.C., 815 S.W.2d 223, 231 (Tex. 1991).
Personal jurisdiction is a waivable requirement. Burger King, 471 U.S. at 473 n. 14, 105 S. Ct. at 2182 n. 14; Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinée, 456 U.S. 694, 703, 102 S. Ct. 2099, 2105 (1982). A forum-selection clause is one of several ways in which a litigant may expressly or impliedly consent to personal jurisdiction. Abacan Technical Servs. Ltd. v. Global Marine Intern. Servs. Corp., 994 S.W.2d 839, 843 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (citing Burger King, 471 U.S. at 473 n. 14, 105 S. Ct. at 2182 n. 14). Enforcement of a forum-selection clause is mandatory absent a showing that “enforcement would be unreasonable and unjust, or that the clause was invalid due to fraud or overreaching.” In re Automated Collection Techs., Inc., 156 S.W.3d 557, 559 (Tex. 2004) (quoting In re AIU Ins. Co., 148 S.W.3d 109, 112 (Tex. 2004)).Petroleum Wholesale premised jurisdiction on Halabu’s agreement to the forum-selection clause in the “Fuel Marketing Location Agreement,” which Halabu allegedly personally guaranteed. Halabu contests enforcement of the clause designation performance in Harris County on the grounds that the personal guarantee was not part of the agreement, that he did not sign the personal guarantee, and that he did not authorize Senawi to sign it as his agent.
Halabu asserts that the evidence is insufficient to support a finding that he guaranteed the agreement and is therefore bound by the forum-selection clause. Specifically, Halabu states that “Petroleum Wholesale had no evidence to challenge that produced by Halabu,” and thus, “the proof supports only one conclusion; the Trial Court did not have personal jurisdiction over Halabu.”
Contrary to Halabu’s assertions, Petroleum Wholesale presented proof that Halabu agreed to be bound by the forum-selection clause: it provided the original contract and the guarantee with Halabu’s signature. Even if we do not consider the late-filed affidavit, “the clause is prima facie valid and enforceable unless the opponent establishes a compelling reason not to enforce it.” Abacan Technical, 994 S.W.2d at 843. Although Halabu presented contradictory evidence to establish that Halabu did not sign the affidavit and did not authorize Senawi to sign the affidavit as his agent, it is the sole province of the fact-finder to resolve conflicts in the evidence. See Benoit v. Wilson, 150 Tex. 273, 281–82, 239 S.W.2d 792, 796–97 (1951); Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 401 (Tex. App.—Houston [1st Dist.] 1993, writ dism’d w.o.j.). The trial court had before it the signed agreement that included the forum-selection clause, as well as the signed personal guarantee. The trial court reasonably could have disregarded Senawi’s affidavit that stated that he was not authorized to sign for Halabu and concluded that Halabu intended to agree to the forum-selection clause for purposes of personal jurisdiction.
Because it may be reasonably inferred from the evidence that Halabu agreed to be bound by the forum-selection clause, sufficient evidence supports the trial court’s findings. See Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001) (if it may reasonably be inferred from the circumstantial evidence that one or more of the appellants assisted in the offense, then there is some evidence to support the jury’s verdict).ConclusionWe affirm the trial court’s order denying Halabu’s special appearance.
Excerpts from opinion by Justice Jane Bland
Before Chief Justice Radack, Justices Jennings and Bland
No. 01-07-00614-CV Shamil Halabu v. Petroleum Wholesale, L.P.
Appeal from 151st District Court of Harris County
Trial Court Judge: Hon. Caroline E. Baker
Attorneys: Sean S. Modjarrad Roger G. Jain Patty A. Morris Stuart W. Lapp Daniel Prescott McManus
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