                                                                                      FILED
                                                                                  Aug 09 2018, 8:08 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Scott A. Norrick                                           Andrew F. Marquis
      Attorney at Law, P.C.                                      Scopelitis, Garvin, Light, Hanson
      Anderson, Indiana                                          & Feary, P.C.
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Daniel T. O’Bryant, D.B.A.                                 August 9, 2018
      O’Bryant Transport LLC,                                    Court of Appeals Case No.
      Appellant-Defendant,                                       48A02-1711-PL-2709
                                                                 Appeal from the Madison Circuit
              v.                                                 Court
      Alan P. Adams, Luan Adams,                                 The Honorable Angela Warner
      D.B.A., A.L.A. Trucking, Inc.,                             Sims, Judge
      Appellee-Plaintiff                                         Trial Court Cause No.
                                                                 48C01-1703-PL-19



      May, Judge.


[1]   Daniel T. O’Bryant, doing business as O’Bryant Transport, LLC (collectively

      “O’Bryant”), appeals the trial court’s dismissal of its claims against Alan P.

      Adams and Luan Adams, doing business as A.L.A. Trucking, Inc. (collectively

      “ALA”). The trial court dismissed the case because the contract between

      O’Bryant and ALA required any litigation resulting from the parties’ agreement




      Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018                       Page 1 of 16
      to be filed in Texas. Because that forum selection clause is valid and

      enforceable, we affirm the trial court’s dismissal of O’Bryant’s claims.



                             Facts and Procedural History
[2]   Both O’Bryant and ALA are located in and do business in Indiana. On

      December 15, 2015, O’Bryant and ALA entered into an Independent

      Contractor Agreement (“Agreement”) under which O’Bryant was to provide

      “transportation related services and the Equipment” in return for certain

      compensation by ALA. (App. Vol. II at 98.) O’Bryant agreed to provide

      drivers and equipment, and he was also required to ensure compliance with

      state laws. ALA agreed to treat O’Bryant as an independent contractor rather

      than an employee and to compensate O’Bryant with “80% of gross receipts and

      100% of fuel surcharge, per load [after] withhold[ing] 3 cents per mile[.]” (Id. at

      108.)


[3]   The Agreement included a forum selection clause (“FSC”) that stated:


              19. COMPLETE AGREEMENT. This Agreement, including
              any Appendices attached, constitutes the sole, entire, and
              existing agreement between the parties herein, and supersedes all
              prior agreements and undertakings, oral and written, expressed
              or implied, or practices, between the parties, and expresses all
              obligations and restrictions imposed on each of the respective
              parties during its term, except those specifically modified or
              changed by mutual written agreement between [ALA] and
              [O’Bryant]. This Agreement shall be deemed to have been
              drawn in accordance with the statutes and laws of the State of
              Texas and in the event of any disagreement or litigation, the laws



      Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018   Page 2 of 16
              of this state shall apply and suit must be brought in this state,
              except that [ALA] may bring suit against [O’Bryant] in any state
              where [O’Bryant] resides or is located.


      (Id. at 105.)


[4]   On March 16, 2017, O’Bryant filed a complaint against ALA in Madison

      County, Indiana. On May 5, 2017, O’Bryant amended the complaint.

      O’Bryant alleged ALA had breached the Agreement by, instead of reimbursing

      O’Bryant as an independent contractor pursuant to Section 7 and Appendix B

      of the Agreement, O’Bryant had worked at ALA’s “office, as Operations

      Manager, without employee salary or benefits, throughout the majority of the

      year 2016[.]” (Id. at 95.) O’Bryant alleged ALA had breached the contract “by

      failing and refusing to perform in good faith their promise to insure [sic] return

      of equity, payment for work, fees, costs and expenses.” (Id.) O’Bryant also

      alleged ALA fraudulently induced O’Bryant to sign the Agreement by making

      “material misrepresentations” regarding the work O’Bryant was to do and the

      outcome of his investments. (Id. at 96.)


[5]   On May 26, 2017, ALA filed a motion to dismiss in which ALA asserted: 1)

      pursuant to Trial Rule 12(B)(2), O’Bryant’s claim in Indiana was barred

      because the FSC controlled “regarding personal jurisdiction,” (id. at 80)

      (formatting altered), and O’Bryant could only file a claim in Texas per the FSC;

      and 2) pursuant to Trial Rule 12(B)(6), O’Bryant’s complaint failed to state a

      claim for which relief could be granted. While also responding with arguments

      about personal jurisdiction doctrines and forum non conveniens, O’Bryant filed an



      Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018   Page 3 of 16
      answer to ALA’s reply arguing the FSC was ambiguous and therefore

      permissive, rather than mandatory. O’Bryant argued that, when signing the

      Agreement in Indiana, O’Bryant understood the reference to “this state” in

      section 19 to indicate Indiana. (Id. at 42.) O’Bryant argued the phrase “suit

      must be brought in this state,” (id. at 105), “neither identifies a venue nor

      contains a specific grant of exclusivity.” (Id. at 43.) He contended that because

      the FSC is permissive and inadequate, the case is properly brought in Indiana,

      where both parties are located and do business. ALA countered that “this

      state,” (id. at 105), is in the same sentence as “laws and statutes of Texas,” (id.);

      thus, “this state,” (id.), must refer to Texas and not Indiana. The trial court

      held a hearing on ALA’s motion on August 15, 2017.


[6]   On August 31, 2017, finding the parties were “all either businesses or the

      owners thereof,” (id. at 14), the trial court granted ALA’s motion based on its

      allegations under Indiana Trial Rule 12(B)(2) pertaining to jurisdiction. The

      trial court found and concluded:


              [O’Bryant] contends that the forum selection provision should
              not be enforced because it is ambiguous and permissive.
              However, the Court finds that the provision is unambiguous and
              mandatory. The provision specifically states that the agreement
              is drawn in accordance with the statutes and laws of the State of
              Texas and then refers back to the State of Texas within the same
              sentence by using the term “this state.” The only logical
              conclusion to the meaning of “this state” is that it refers to the
              State of Texas. Furthermore, the provision uses the mandatory
              language “must be brought” when requiring the suit to be
              litigated in the State of Texas. This language “precludes the
              possibility of venue in any other forum.” See Coral Chemical Co.


      Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018   Page 4 of 16
        v. Chemetall U.S., Inc., Cas No. 16-cv-23, 2016 WL 3521952, *7
        (S.D. Ind. June 28, 2016).


        The Court also finds that [O’Bryant] has failed to demonstrate
        that the forum selection provision is unreasonable and unjust
        under the circumstances, and that there is any evidence of fraud
        or overreaching. In fact, [O’Bryant] gives little attention to these
        elements in his responsive filings other than to make the blanket
        statements that the forum selection provision is (1) “based on the
        fraudulent conduct of [ALA]”; (2) “enforcement of that clause
        would be unreasonable and unjust”; and (3) “[ALA], . . . , have
        merely inserted that permissive clause to avoid litigation by
        causing inconvenience.” See [O’Bryant]’s Answer to [ALA]s’
        Motion to Dismiss Amended Complaint, p. 2; [O’Bryant]’s
        Answer to [ALA’s] Reply in support of Motion to Dismiss
        Amended Complaint, p. 7, footnote 1. These assertions alone
        failed to give the Court any grounds on which to find the forum
        selection provision unenforceable.


        Moreover, the Court finds that the provision was freely
        negotiated.


                                               *****


        Plaintiff alleges in its Amended Complaint that the parties are all
        either businesses or the owners thereof. Plaintiff’s Amended
        Complaint, ¶¶ 2 and 8. Plaintiff further alleges that the parties
        “entered into and affixed signatures to an Independent
        Contractor Agreement (hereafter ‘The Agreement’), included
        herein and attached hereto.” Plaintiff’s Amended Complaint, ¶
        9. Nothing in Plaintiff’s Amended Complaint or responses to
        Defendants’ Motion to Dismiss demonstrates that the parties
        negotiated the Independent Contractor Agreement from unequal
        bargaining positions. “‘Because we presume that contracts
        represent the freely bargained agreement of the parties, we



Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018   Page 5 of 16
               conclude that this agreement represents the freely negotiated
               wishes of both parties.“ Grott v. Jim Barna Log Systems-Midwest,
               Inc., 794 N.E.2d at 1102.


      (Id. at 13-14) (errors and ellipsis in original).


[7]   On September 25, 2017, O’Bryant filed a motion to correct error, alleging the

      same arguments it had in previous filings, together with a new argument that

      Texas would “not entertain a dispute over the Indiana contract in the courts of

      that State[.]” (Id. at 21.) In support of the new argument, O’Bryant’s attorney

      submitted an affidavit stating he had contacted an unnamed attorney in Texas

      and been told “O’Bryant had no remedy in the State of Texas based on the fact

      that none of the parties maintained an operational business in that state and

      therefore, the State of Texas would not accept personal jurisdiction over the

      parties to any law suit.” (Id. at 133.) ALA responded and noted the affidavit

      from O’Bryant’s counsel was improper because 1) the only way to introduce

      new evidence with a motion to correct error is if the evidence is newly

      discovered and could not have been discovered and produced earlier and 2) the

      affidavit did not prove any truth but was merely “inadmissible hearsay and

      conclusory legal statements.” (Id. at 37.) By chronological case summary

      notation, the trial court denied O’Bryant’s motion to correct error.



                                   Discussion and Decision                                1




      1
       We note, at the onset, the lack of civility, in particular on the part of O’Bryant, throughout not only the trial
      proceedings but the appellate proceedings. Unnecessarily argumentative and snide comments such as, “This
      explanation [of persuasive authority] is made for edification of Defendant, not the Appellate Court. The first



      Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018                            Page 6 of 16
[8]   O’Bryant argues the trial court abused its discretion when it granted ALA’s

      motion to dismiss because the FSC was permissive and because the Agreement

      is unenforceable as it was signed under fraudulent circumstances and would

      deprive O’Bryant of a remedy at law. O’Bryant does not argue the trial court

      erred when it denied O’Bryant’s motion to correct error.


[9]   In its motion to correct error, for the first time, O’Bryant alleged Texas would

      not accept jurisdiction. A new issue may not be raised for the first time in a

      motion to correct error or on appeal. Rodgers v. Rodgers, 503 N.E.2d 1255, 1257

      (Ind. Ct. App. 1987), reh’g denied, trans. denied. Per Indiana Trial Rule 59, a

      party may use a motion to correct error to present “newly discovered material

      evidence . . . which, with reasonable diligence, could not have been discovered

      and produced at trial[.]” The affidavit provided by O’Bryant’s attorney could

      have been produced at any time during these proceedings. Therefore, we

      cannot say the court abused its discretion by refusing to reconsider its order (or

      find its judgment erroneous) on the basis of the affidavit. See Hawkins v. Cannon,

      826 N.E.2d 658, 664 (Ind. Ct. App. 2005) (no error in denial of motion to

      correct error when evidence could have been discovered and produced at trial

      with due diligence), trans. denied.




      is apparently unaware – while Plaintiff is sure the latter is quite aware[,]” (Reply Br. at 11 n.3), degrade the
      parties’ arguments by showcasing the incivility between the parties. We remind counsel of sections 1 and 9
      of the Preamble of the Indiana Rules of Professional Conduct, which state: “Whether or not engaging in the
      practice of law, lawyers should conduct themselves honorably[;]” and “[The principles of the Rules of
      Professional Responsibility] include the lawyer’s obligation to protect and pursue a client’s legitimate
      interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward
      all persons involved in the legal system.”




      Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018                           Page 7 of 16
[10]   Although O’Bryant does not argue the trial court erred when it denied the

       motion to correct error, our standard of review for appeal of a motion to correct

       error nevertheless directs us to consider the underlying order, here the order

       granting ALA’s motion to dismiss pursuant to Trial Rule 12(B)(2). See In re

       Paternity of H.H., 879 N.E.2d 1175, 1177 (Ind. Ct. App. 2008) (review of motion

       to correct error includes review of underlying order). It is proper to challenge

       the personal jurisdiction of a trial court with a motion to dismiss pursuant to

       Indiana Trial Rule 12(B)(2). Simek v. Nolan, 64 N.E.3d 1237, 1241 (Ind. Ct.

       App. 2016). The standard of review of a trial court’s grant or denial of a motion

       to dismiss based on whether personal jurisdiction exists is de novo. Sohacki v.

       Amateur Hockey Assoc. of Illinois, 739 N.E.2d 185, 188 (Ind. Ct. App. 2000).

       When reviewing matters involving personal jurisdiction, the party challenging

       jurisdiction has the burden of establishing the lack thereof by a preponderance

       of the evidence. Id. Upon appeal from a motion to dismiss on grounds of lack

       of jurisdiction, the Court of Appeals is in as good a position as the trial court to

       determine whether it has jurisdiction. Zollman v. Gregory, 744 N.E.2d 497, 498

       (Ind. Ct. App. 2001), trans. denied.


[11]   The jurisdictional issues in this case arise from the forum selection clause found

       in the contract between the parties. Forum selection clauses are not per se

       invalid. Horner v. Tilton, 650 N.E.2d 759, 763 (Ind. Ct. App. 1995), reh’g denied,

       trans. denied. Provisions seeking to “limit the litigation of future actions to

       particular courts or places are enforceable if they are reasonable and just under

       the circumstances, and there is no evidence of fraud or overreaching such that



       Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018   Page 8 of 16
       the agreeing party, for all practical purposes, would be deprived of a day in

       court.” Grott v. Jim Barna Log. Sys.-Midwest, Inc., 794 N.E.2d 1098, 1102 (Ind.

       Ct. App. 2003), trans. denied. The reviewing court must also determine the

       provision was freely negotiated. Id. The party claiming unfairness bears the

       burden of proof. Id.


                                       Permissive or Mandatory
[12]   O’Bryant contends the trial court erred when it dismissed this suit because the

       FSC was permissive rather than mandatory. O’Bryant argues the language

       referencing “this state,” (App. Vol. II at 105), was ambiguous. Additionally,

       O’Bryant argues the FSC “neither identifies a venue nor contains a specific

       grant of exclusivity.” (Br. of Appellant at 13.) Due to these alleged deficiencies

       and ambiguities, O’Bryant maintains the FSC is permissive and the case need

       not be filed in Texas.


[13]   The unambiguous language of a contract is conclusive and binding on the

       parties and on the court, and if the language is unambiguous, the parties’ intent

       is determined from the four corners of the document. Peoples Bank & Trust Co. v.

       Price, 714 N.E.2d 712, 716 (Ind. Ct. App. 1999), trans. denied. “The terms of a

       contract are not considered ambiguous merely because a controversy exists

       between the parties concerning the proper interpretation of terms.” George

       Uzelac & Assocs., Inc. v. Guzik, 663 N.E.2d 238, 240 (Ind. Ct. App. 1996), trans.

       denied. “Generally, the courts should presume that all provisions included in a




       Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018   Page 9 of 16
       contract are there for a purpose . . . .” Indianapolis–Marion Cnty. Pub. Library v.

       Shook, LLC, 835 N.E.2d 533, 541 (Ind. Ct. App. 2005).


                                                   “This State”

[14]   The FSC states the Agreement “shall be deemed to have been drawn in

       accordance with the statutes and laws of the State of Texas and in the event of

       any disagreement or litigation, the law of this state shall apply and suit must be

       brought in this state . . . .” (App. Vol. II at 105) (emphasis added). O’Bryant

       contends that because the Agreement was signed in Indiana, it understood “this

       state” to refer to Indiana. ALA counters that the only state listed in the clause

       was Texas, and therefore the only state “this state” could refer to was Texas.

       ALA argues O’Bryant’s mistaken interpretation does not render the FSC

       ambiguous. The trial court agreed with ALA.


[15]   We agree with ALA and the trial court. Under the ejusdem generis rule, “when a

       general word or phrase follows a list of specifics, the general word or phrase will

       be interpreted to include only items of the same class as those listed.” BLACK’S

       LAW DICTIONARY (10th ed. 2014). Here, the specific item is the “statutes and

       laws of the State of Texas,” (App. Vol. II at 105), while the general term is “this

       state.” (Id.) Therefore, “this state” means Texas and not Indiana, regardless of

       where the parties signed the Agreement. See Westfield Companies v. Knapp, 804

       N.E.2d 1270, 1275 (Ind. Ct. App. 2004) (a pickup truck is not considered

       mobile equipment when “mobile equipment” is listed as including “air

       compressor, pumps and generators . . . or [c]herry pickers . . . ”), reh’g denied,

       trans. denied. While O’Bryant may have misconstrued the meaning, under


       Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018   Page 10 of 16
       general contract interpretation rules, it is not reasonable to interpret “this state”

       to mean Indiana rather than Texas. See Perryman v. Motorist Mut. Ins. Co., 846

       N.E.2d 683, 687 (Ind. Ct. App. 2006) (goal of contract interpretation is to

       ascertain and enforce the parties’ intent as manifested in the language of the

       contract).


                                              Venue and Exclusivity

[16]   O’Bryant contends the FSC does not identify a specific individual county in

       Texas and grant exclusive jurisdiction to that venue; therefore, it argues, the

       FSC is permissive and not mandatory. ALA counters the language does

       identify a venue and grants it exclusivity.


[17]   In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991), 2 both parties were

       domiciled in the United States. Carnival’s principal place of business was

       Florida, but it operated in many other states. The Shutes lived in Washington.

       Ms. Shute was injured while on a cruise off the coast of Mexico. The FSC in

       that case designated any disputes were to be litigated “before a Court located in

       the State of Florida, U.S.A., to the exclusion of the Courts of any other state or

       country.” Id. at 587-88. The FSC did not designate a county wherein a suit

       was required to be brought; rather, the suit merely had to be brought in Florida.

       The Supreme Court held the forum selection clause was valid.




       2
        Carnival was a case in admiralty and, thus, not binding on Indiana state courts; nevertheless, Indiana has
       adopted the Supreme Court’s reasoning as it pertains to the validity of forum selection clauses. Farm Bureau
       Gen. Ins. Co. of Michigan v. Sloman, 871 N.E.2d 324, 329 (Ind. Ct. App. 2007), trans. denied.




       Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018                       Page 11 of 16
[18]   In Mechanics Laundry & Supply, Inc. v. Wilder Oil Co., Inc., 596 N.E.2d 248 (Ind.

       Ct. App. 1992), reh’g denied, trans. denied, we adopted the holding of Carnival

       regarding FSCs wherein parties have consented “by contract to the exercise of

       personal jurisdiction by courts that otherwise might not have such jurisdiction.”

       596 N.E.2d at 251. Therefore, the lack of designation of a particular county in

       Texas does not invalidate the FSC here.


[19]   O’Bryant also argues the FSC is permissive because the word “shall” does not

       grant exclusive jurisdiction to Texas. In Indiana, we have held the word “shall”

       indicates the subsequent language is mandatory. See, e.g., Harris v. Delaware

       Cnty. Div. of Family & Child. Servs., 732 N.E.2d 248, 249 (Ind. Ct. App. 2000)

       (trial rule employing the word “shall” makes the rule mandatory), reh’g denied;

       Indiana Gaming Co., L.P. v. Blevins, 724 N.E.2d 274, 278 (Ind. Ct. App. 2000)

       (“shall” language in agreement necessitates certain parties be included as third-

       party beneficiaries), trans. denied. Nevertheless, the FSC in this matter states not

       only that the Agreement was made “in accordance with the statutes and laws of

       the State of Texas and . . . the laws of this state shall apply . . . ” but also that

       “suit must be brought in this state[.]” (App. Vol. II at 105) (emphases added).

       Therefore, because the FSC states the laws of Texas shall apply and the parties

       must bring suit in Texas, Texas has exclusive jurisdiction.


                                                Enforceability
[20]   O’Bryant contends the FSC is not enforceable because it deprives O’Bryant of a

       remedy at law.




       Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018     Page 12 of 16
               “[C]ontractual provisions . . . that seek to limit the litigation of
               future actions to particular courts or places are enforceable if they
               are reasonable and just under the circumstances and there is no
               evidence of fraud or overreaching such that the agreeing party,
               for all practical purposes, would be deprived of a day in court.”


       Mechanics, 596 N.E.2d at 250. In order to be enforceable, the FSC must be

       freely negotiated. Farm Bureau Gen. Ins. Co. of Michigan v. Sloman, 871 N.E.2d

       324, 329 (Ind. Ct. App. 2007), trans. denied. Therefore, the FSC is required to

       be freely negotiated and also be just and reasonable.


                                                Freely Negotiated

               To determine whether a forum selection provision was freely
               negotiated, courts apply a fact-sensitive test involving a
               comparison of the bargaining position of the parties to the
               contract. A contract is unconscionable if there exists a great
               disparity in bargaining power between the parties, leading the
               weaker party to sign the contract unwillingly or without
               awareness of its terms. Indiana courts recognize the principle
               that parties are free to enter into contracts and, indeed, presume
               that contracts represent the freely bargained agreement of the
               parties. A standardized contract is not unenforceable merely
               because of the unequal bargaining power of the parties—there
               must also be a showing that the contract is unconscionable.


       Dexter Axle Co. v. Baan USA, Inc., 833 N.E.2d 43, 49 (Ind. Ct. App. 2005)

       (internal citations omitted).


[21]   The record reveals O’Bryant and ALA are both businesses that entered into an

       arms-length business transaction. The trial court refers to the parties as “all

       either businesses or the owners thereof[,]” (App. Vol. II at 14), and that



       Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018   Page 13 of 16
       “[n]othing in [O’Bryant’s] Amended Complaint or responses to Defendants’

       Motion to Dismiss demonstrates that the parties negotiated the [Agreement]

       from unequal bargaining positions.” (Id.) O’Bryant does not argue this

       assertion is incorrect. When parties are on equal footing, “the law will not

       protect one who fails to exercise common sense and judgment.” Plymale v.

       Upright, 419 N.E.2d 756, 762 (Ind. Ct. App. 1981).


[22]   In its brief, O’Bryant makes some blanket statements that ALA misrepresented

       facts as to recompense, but it does not argue it was unable to negotiate the FSC

       or that it had to accept the contract as written. The question of recompense is

       not before us—only the question regarding the applicability of the FSC is before

       us. O’Bryant makes no claim that it objected to the FSC or tried to omit it.

       Rather, O’Bryant simply argues it misunderstood the FSC to mean any

       litigation would occur in Indiana, rather than Texas, without arguing ALA had

       affirmatively stated that to be the case. Therefore, O’Bryant has not

       demonstrated it was unable to negotiate the FSC. We have no reason to upset

       the bargained-for language of the parties, and we conclude the FSC was freely

       negotiated and is enforceable. See Grott, 794 N.E.2d at 1103 (without evidence

       from complainant otherwise, reviewing court has no reason to assume the

       contract language was not freely negotiated).


                                              Just and Reasonable

[23]   O’Bryant asserts the FSC is unjust and unreasonable as it would deprive

       O’Bryant of its day in court and be against public policy because neither

       O’Bryant nor ALA are located in Texas. O’Bryant appears to be arguing Texas


       Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018   Page 14 of 16
       is an inconvenient forum or it has insufficient contacts with Texas for Texas to

       acquire personal jurisdiction over it. However, those issues are not available to

       O’Bryant because O’Bryant signed the contract and consented to jurisdiction in

       Texas. As noted above, O’Bryant has not shown it was unable to negotiate the

       terms of the agreement.


[24]   To avoid litigation in Texas, O’Bryant must prove that holding trial in Texas

       will be “so gravely difficult and inconvenient that [it] will, for all practical

       purposes, be deprived of [its] day in court.” Horner, 650 N.E.2d at 763-64

       (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 19 (1972)). In Carnival,

       although the Shutes were located in Washington and the cruise they took was

       along the west coast of the United States, the Supreme Court held that venue in

       Florida was not enough of an inconvenience to make the FSC unjust or

       unreasonable. Carnival, 499 U.S. at 595. While we recognize neither ALA nor

       O’Bryant is located in Texas, the fact remains that two business entities agreed

       to litigate any disagreements in Texas. If the Shutes, unsophisticated parties

       who agreed by signing a non-negotiable form contract, cannot show litigation

       in another State is sufficiently inconvenient to make the FSC unenforceable, we

       cannot hold this seemingly knowledgeable business entity, with the power and

       ability to negotiate the terms of the contract, can simply assert Texas, an

       agreed-upon forum, is too inconvenient to be reasonable and just.


[25]   As to O’Bryant’s contention it would be deprived its day in court, we again note

       O’Bryant waived that argument by not asserting Texas would not accept

       jurisdiction until it filed its motion to correct error. See Rodgers, 503 N.E.2d at



       Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018   Page 15 of 16
       1257 (a new issue may not be raised for the first time in a motion to correct

       error or on appeal).



                                                Conclusion
[26]   As the trial court did not err when it dismissed O’Bryant’s claim due to the FSC

       in the Agreement, the court did not abuse its discretion when it denied

       O’Bryant’s motion to correct error. We therefore affirm.


[27]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 48A02-1711-PL-2709 | August 9, 2018   Page 16 of 16
