      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-15-00694-CV



                                  In re Dunbar Armored, Inc.


                      ORIGINAL PROCEEDING FROM BELL COUNTY



                           MEMORANDUM OPINION


              Relator Dunbar Armored, Inc. has filed a petition for writ of mandamus, complaining

of the trial court’s refusal to grant its motion to dismiss. See Tex. R. App. P. 52. As explained

below, we agree with Dunbar that the underlying cause should be dismissed and conditionally grant

mandamus relief. See id. R. 52.8(c).


                                          Background

              In 2013, Dunbar entered into a contract with real party in interest First National

Bank.1 Under the contract, which was executed in Maryland, Dunbar agreed to provide support

services for automated teller machines (ATMs) in Houston, including deposit collection and cash

delivery. The contract included the following paragraph:


       Upon discovery of a claim for loss or damage under this contract, CUSTOMER shall
       promptly report the same to the appropriate police authorities and shall maintain and
       preserve all evidence. Within ten (10) days after discovery of any loss, but in no


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         The facts are taken from the contractual documents and the parties’ pleadings in the
underlying lawsuit.
       event more than thirty (30) days after delivery to DUNBAR of the funds, securities,
       instruments and/or valuable articles in connection with such claim is asserted,
       CUSTOMER shall give notice of claim in writing to DUNBAR. If the CUSTOMER
       fails to comply with the conditions of this paragraph 6, CUSTOMER agrees that all
       claims against DUNBAR relating to the lost or damaged items are deemed to be
       waived and released. Within thirty (30) days after the giving of written notice of
       any claim for loss or damage under this Contract, CUSTOMER shall furnish to
       DUNBAR detailed written proof of such loss or damage in form satisfactory to
       DUNBAR’S insurer. CUSTOMER agrees to cooperate with and assist DUNBAR’S
       insurer in its adjustment of any loss. No action, suit or other proceeding to recover
       from any such loss or damage shall be maintained against DUNBAR unless
       CUSTOMER complies with all of the terms and conditions of this Contract, and
       unless such proceeding is commenced within twelve (12) months of the day of
       receipt by DUNBAR of the funds, securities, instruments and/or valuable articles
       with respect to which such suit, action or proceeding shall be brought. If it is
       determined that any of the provisions of this paragraph are invalid, then the notice
       requirements and the time for suit stated herein shall be the shortest limit of time
       allowable under applicable law. This Contract and all claims hereunder will be
       governed by the laws of the State of Maryland, and all claims, suits, or proceedings
       brought against DUNBAR to recover for loss or damage must be brought in a court
       within the jurisdiction of the State of Maryland.


To satisfy its contractual duties, Dunbar had to maintain an inventory of cash belonging to First

National and was responsible for accounting for the cash in the inventory and in the ATMs. After

the parties canceled their contractual agreement, Dunbar returned the remaining funds. First

National alleged a $40,000 shortfall in those funds, but Dunbar denied that it owed any funds.

               In 2015, First National sued Dunbar in Bell County, Texas, raising claims for breach

of contract, money had and received, and breach of fiduciary duty and request for accounting.

Dunbar filed a motion to dismiss, relying on the forum-selection clause. First National argued in

response that the forum-selection clause did not apply to its claims because that clause applied

only to allegations involving “property loss or damage.” The trial court signed an order denying

Dunbar’s motion to dismiss, and Dunbar filed this original proceeding.

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                                             Discussion

               Dunbar asserts that the contract’s forum-selection clause required First National’s suit

to be filed in Maryland, not Texas, and that the trial court abused its discretion in denying Dunbar’s

motion to dismiss.2 “[M]andamus is available to enforce a forum-selection clause. There is no

adequate remedy by appeal when a trial court refuses to enforce a forum-selection clause, and such

clauses can be enforced via mandamus.” In re Lyon Fin. Servs., Inc., 257 S.W.3d 228, 231 (Tex.

2008) (forum-selection clause is generally enforceable, and party who challenges validity of clause

bears heavy burden). “When a party seeks to enforce a mandatory forum-selection clause, a court

must determine whether the claims in question fall within the scope of that clause.” Deep Water

Slender Wells, Ltd. v. Shell Int’l Expl. & Prod., Inc., 234 S.W.3d 679, 687-88 (Tex. App.—Houston

[14th Dist.] 2007, pet. denied).

               First National contends that the trial court had the discretion to determine that the

contract and its forum-selection clause were ambiguous. See In re Sterling Chems., Inc., 261 S.W.3d

805, 811 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding) (“Given the ambiguity in the

forum-selection clause, we cannot say that the trial court abused its discretion by denying relators’

motions to dismiss.”). Thus, First National argues, the court did not abuse its discretion in deciding

to deny Dunbar’s motion. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.

1985) (trial court abuses its discretion if its decision is “so arbitrary and unreasonable as to amount

to a clear and prejudicial error of law,” and relator has “heavy burden” of showing, “under the




       2
          See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (mandamus will issue only if trial
court’s error constituted “clear abuse of discretion” and there is no adequate remedy by appeal).

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circumstances of the case, that the facts and law permit the trial court to make but one decision. This

determination is essential because mandamus will not issue to control the action of a lower court in

a matter involving discretion.”); Harris v. Jones, 8 S.W.3d 383, 386 (Tex. App.—El Paso 1999,

no pet.) (“if more than one course of action is open to the trial court, mandamus should not issue”).

To support its argument, First National notes that the forum-selection clause addresses “all claims,

suits, or proceedings brought against DUNBAR to recover for loss or damage” (emphasis added),

while elsewhere the contract states that “all claims hereunder will be governed by the laws of the

State of Maryland.” First National contends that Dunbar “could easily have included a requirement

that all claims arising under the [contact] are subject to the forum-selection clause” and that, because

it did not do so, the trial court did not abuse its discretion in concluding that the forum-selection

clause applied only to claims for “loss or damage” and that First National’s claims did not fall within

that category of claims. First National next notes that the forum-selection clause provides that once

the bank discovered a claims for loss or damage, it was to report the loss to law enforcement and

maintain any evidence. This, it argues, implies that claims subject to the forum-selection clause are

those arising from a criminal act resulting in loss or damage to personal property.

               In interpreting a contract, we must read the document as a whole. See EMC Mortg.

Corp. v. Davis, 167 S.W.3d 406, 413 (Tex. App.—Austin 2005, pet. denied). First National, however,

seeks to pull the paragraph containing the forum-selection clause into individual parts. The entire

sentence in which the forum-selection clause appears reads as follows: “This Contract and all claims

hereunder will be governed by the laws of the State of Maryland, and all claims, suits, or proceedings

brought against DUNBAR to recover for loss or damage must be brought in a court within the



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jurisdiction of the State of Maryland.” When we read the forum-selection clause in the context of

the entire paragraph and the contract as a whole,3 it is clear that First National’s claims, asserting that

Dunbar wrongfully withheld $40,000 of funds when the contractual relationship ended, are claims

for “loss or damage” that fall within the forum-selection clause and were required to be filed in a

Maryland court. Thus, the trial court erred in denying Dunbar’s motion to dismiss.


                                              Conclusion

                We conditionally grant Dunbar’s petition for writ of mandamus. Writ will issue only

in the unlikely event that the trial court does not act in accordance with this opinion.



                                                 __________________________________________

                                                 David Puryear, Justice

Before Justices Puryear, Goodwin, and Bourland

Filed: January 6, 2016




        3
           The contract also provides: that Dunbar would carry insurance covering its liability under
the contract “for loss of or damage to property consigned to it thereunder”; that First National agreed
that “all shipments of monies, notes, securities and other valuable property” provided by it to Dunbar
would be contained in secure containers; that Dunbar would only be responsible for the value of
property as reflected by Dunbar’s receipt for “sealed bags, packages or cassettes”; that First National
agreed that Dunbar was to “provide services outlined herein subject to the terms and conditions
stated above”; that Dunbar accepted its contractual duties “only with the acceptance of and
compliance with the terms and conditions stated above”; and that “[a]ny claims made by [First
National] must be subject to these conditions, whether filed under contract, tort, warranty, strict
liability, bailment, conversion, or any other theory of liability.”

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