Opinion issued June 17, 2014




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                            NO. 01-13-00672-CV
                         ———————————
     NANCY L. HENRY AND MS. NANCY’S E-Z OUT BAIL BONDS,
                         Appellants
                                     V.
           FINANCIAL CASUALTY & SURETY INC., Appellee


                  On Appeal from the 129th District Court
                           Harris County, Texas
                     Trial Court Case No. 2013-16971


                      MEMORANDUM OPINION

     Appellants Nancy L. Henry and Ms. Nancy’s E-Z Out Bail Bonds (“E-Z”)

bring this interlocutory, accelerated appeal from the denial of their special

appearance in a suit brought by appellee, Financial Casualty & Surety Inc.
(“FCS”). 1 E-Z contends that the trial court erred in denying its special appearance

because (1) the contract’s forum-selection clause is void and unenforceable; (2)

FCS did not allege that E-Z—nonresident defendants—committed acts in Texas;

and, (3) the court’s exercise of personal jurisdiction in this case violates E-Z’s due

process rights.

      We affirm.

                                    Background

      Financial Casualty & Surety Inc. sued Nancy L. Henry and Ms. Nancy’s E-Z

Out Bail Bonds for breach of contract, breach of fiduciary duty, indemnification,

conversion, and fraud arising out of the issuance of bail bonds under a

Sub-Producer Bail Bond Agreement (the contract) between the parties. In the

petition, FCS alleged that E-Z consented to personal jurisdiction in Texas and that

venue was proper in Harris County pursuant to the contract’s forum-selection

clause. A copy of the contract was attached to the petition and incorporated by

reference.

      E-Z filed a special appearance 2 in which it argued that the trial court lacked

personal jurisdiction over it because it lacked the requisite minimum contacts with


1
      See TEX. R. CIV. P. 120a; TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7)
      (West 2013); see also TEX. R. APP. P. 28.1(a) (“Appeals from interlocutory orders
      . . . are accelerated appeals.”).
2
      E-Z’s special appearance was combined with a motion to dismiss for forum non
      conveniens. Although there is a statutory right to an interlocutory appeal from the

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Texas, and that traditional notions of fair play and substantial justice would be

offended. FCS’s response argued that the trial court had personal jurisdiction over

E-Z regardless of its contacts with the state because E-Z contractually consented to

jurisdiction in Texas, thereby waiving any objections to the Texas court’s exercise

of personal jurisdiction over it. The contract recited the following clause:

        APPLICABLE LAW, VENUE, AND FORUM. At the discretion of
        [FCS], the Agreement is to be interpreted in accordance with the laws
        of the State of Texas, where [FCS] is based, or [E-Z’s] home state.
        The parties hereto do hereby consent and stipulate to the
        jurisdiction (at the discretion of [FCS]) of the courts in the State
        of Texas, County of Harris or of [E-Z’s] home state for any action
        brought under this Agreement.

    (emphasis added).

        The trial court held a hearing and overruled E-Z’s special appearance.3 This

appeal followed.

                                   Special Appearance

        In three issues, E-Z contends that the trial court erred in denying its special

appearance because (1) the contract’s forum-selection clause (a) violates Texas law

concerning forum-selection clauses, (b) violates Texas’s public policy against

forum-shopping, (c) is unconscionable for various reasons (e.g., overreaching, one-


        denial of a special appearance, there is no such right with regard to the denial of a
        motion to dismiss for forum non conveniens. See TEX. R. CIV. P. 120a; TEX. CIV.
        PRAC. & REM. CODE ANN. § 51.014(a)(7) (West 2013). Accordingly, we will
        limit our discussion to the merits of E-Z’s special appearance.
3
        There is no reporter’s record of the hearing.


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sidedness), and (d) is ambiguous; (2) FCS did not allege that E-Z—nonresident

defendants—committed acts in Texas, and; (3) the Texas court’s exercise of

personal jurisdiction over E-Z violates its rights to due process of law (i.e., E-Z did

not have sufficient minimum contacts with Texas and the exercise of personal

jurisdiction in this case offends traditional notions of fair play and substantial

justice).

A.     Standard of Review and Applicable Law

       The plaintiff bears the initial burden to plead sufficient allegations to bring a

nonresident defendant within the reach of Texas’s long-arm statute. Kelly v. Gen.

Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010); Moki Mac River

Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). The burden then shifts to

the nonresident defendant to negate all bases of jurisdiction in those allegations.

Moki Mac, 221 S.W.3d at 574; BMC Software Belgium, N.V. v. Marchand, 83

S.W.3d 789, 793 (Tex. 2002). Because jurisdiction is a question of law, we review

a trial court’s determination of a special appearance de novo. Moki Mac, 221

S.W.3d at 574; BMC Software, 83 S.W.3d at 794. When the trial court does not

issue findings of fact and conclusions of law, we infer all facts necessary to support

the judgment if they are supported by the evidence. Moki Mac, 221 S.W.3d at 574;

BMC Software, 83 S.W.3d at 795. Here, the trial court did not issue findings of

fact and conclusions of law. Consequently, we construe the denial of the special



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appearance as an implied finding that the contract’s forum-selection clause was

valid and enforceable.

      Forum-selection clauses are generally enforceable and presumptively valid.

In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (per curiam). A trial court

abuses its discretion in refusing to enforce the clause unless the party opposing

enforcement clearly shows (1) enforcement would be unreasonable or unjust, (2)

the clause is invalid for reasons of fraud or overreaching, (3) enforcement would

contravene a strong public policy of the forum where the suit was brought, or (4)

the selected forum would be seriously inconvenient for trial. Id. The burden of

proof is heavy for the party challenging enforcement. Id. (citing In re ADM

Investor Servs., 304 S.W.3d 371, 375 (Tex. 2010)); see also In re Int’l Profit

Assocs., Inc., 286 S.W.3d 921, 923 (Tex. 2009) (orig. proceeding) (per curiam).

B.    Issue 1

      E-Z’s first issue contends that the trial court erred in denying its special

appearance because (1) the contract’s forum-selection clause (a) violates Texas law

which, according to E-Z, defines a forum-selection clause as one that requires that

the parties agree to litigate any disputes in one forum with “exclusive jurisdiction”

over such disputes, (b) violates Texas’s public policy against forum-shopping, (c)

is unconscionable for various reasons (e.g., overreaching, one-sidedness), and (d)

is ambiguous. E-Z’s arguments that the forum-selection clause is void and/or



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unenforceable are waived because E-Z did not present these arguments to the trial

court. See TEX. R. APP. P. 33.1; see also Abacan Technical Servs. Ltd. v. Global

Marine Int’l Servs. Corp., 994 S.W.2d 839, 844 (Tex. App.—Houston [1st Dist.]

1999, no pet.) (holding party failed to preserve complaint that forum-selection

clause was unreasonable as matter of law because party did not raise complaint in

trial court).

       We overrule E-Z’s first issue.

C.     Issue 2

       E-Z’s second issue contends that the trial court abused its discretion in

overruling its special appearance because FCS failed to plead facts which would

subject E-Z to in personam jurisdiction (i.e., alleging that E-Z committed acts in

Texas). E-Z’s argument is unavailing. FCS did not have to allege that E-Z

committed acts in Texas in order plead facts sufficient to bring E-Z within the

reach of Texas’s long-arm statute because FCS pleaded an alternative ground for

personal jurisdiction—consent. In particular, FCS pleaded that E-Z had consented

to personal jurisdiction in Texas when it executed the contract with a forum-

selection clause. See Tri–State Bldg. Specialties, Inc. v. NCI Bldg. Sys., L.P., 184

S.W.3d 242, 248 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (“If a party signs

a contract with a forum[-]selection clause, then that party has either consented to

personal jurisdiction or waived the requirements for personal jurisdiction in that



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forum.”) The contract was filed as an exhibit to the petition and incorporated

therein. As such, FCS met its initial burden to plead facts sufficient to bring E-Z

within the reach of Texas’s long-arm statute. See Tri–State Bldg. Specialties, Inc.,

184 S.W.3d at 248 (affirming denial of special appearance; acknowledging that

plaintiff met its initial burden by alleging that defendant consented to jurisdiction

by virtue of forum-selection clause and defendant—who did not challenge

enforceability of clause—failed to negate all possible grounds for jurisdiction).

      We overrule E-Z’s second issue.

D.    Issue 3

      E-Z’s third issue contends that the trial court erred in denying the special

appearance because E-Z lacked sufficient minimum contacts with Texas and the

exercise of personal jurisdiction over E-Z would offend traditional notions of fair

play and substantial justice. This argument is also unavailing. When a party

contractually consents to jurisdiction, the party’s contacts with the chosen forum

are irrelevant for purposes of personal jurisdiction and due process. See In re

Fisher, No. 12–0163, ––– S.W.3d ––––, 2014 WL 801160, at *8 (Tex. Feb. 28,

2014) (orig. proceeding) (stating contractual “consent-to-jurisdiction clause”

subjects party to personal jurisdiction, making analysis of that party’s contacts with

forum for personal jurisdiction purposes unnecessary) (citing RSR Corp. v.

Siegmund, 309 S.W.3d 686, 704 (Tex. App.—Dallas 2010, no pet.)); see also



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Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n.14, 105 S. Ct. 2174, 2182

n.14 (1985) (“Where such forum-selection provisions have been obtained through

‘freely negotiated’ agreements and are not ‘unreasonable and unjust,’ their

enforcement does not offend due process.”) (quoting M/S Bremen v. Zapata

Off-Shore Co., 407 U.S. 1, 15, 92 S. Ct. 1907, 1916 (1972)).

      Here, we are presented with a presumptively valid and enforceable forum-

selection clause in which E-Z contractually agreed to submit to the jurisdiction of

“the courts in the State of Texas, County of Harris.” As previously discussed, E-Z

did not challenge the enforceability of the forum-selection clause in the special

appearance—in fact, E-Z never even mentions the clause in the special

appearance.4 E-Z, who bears the heavy burden of proving the invalidity of the

forum-selection clause, cannot challenge the enforceability of the clause for the

first time on appeal. See In re ADM Investor Servs., 304 S.W.3d at 375 (“The

burden of proof is heavy for the party challenging enforcement.”); Abacan

Technical Servs. Ltd., 994 S.W.2d at 844 (holding party failed to preserve

complaint that forum-selection clause was unreasonable as matter of law because

party did not raise complaint in trial court).

      We overrule E-Z’s third issue.

4
      E-Z’s sole reference to the forum-selection clause is in the motion for forum non
      conveniens—not the special appearance. (“Furthermore, the Forum Selection
      Clause specifically states New Jersey is an alternate and available forum for a
      dispute between the parties.”)

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                                    Conclusion

      We affirm the trial court’s denial of E-Z’s special appearance.




                                             Jim Sharp
                                             Justice


Panel consists of Justices Jennings, Higley, and Sharp.




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