                              NUMBER 13-11-00145-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

                           IN RE EMEX HOLDINGS L.L.C.


                        On Petition for Writ of Mandamus.


               DISSENTING MEMORANDUM OPINION
                  Before Justices Garza, Vela, and Perkes
             Dissenting Memorandum Opinion by Justice Garza

       I agree with most of the Court’s analysis but disagree with the uncompromising

nature of the Court’s ultimate directive to the trial court. In particular, I disagree with the

Court’s failure to apply the approach taken by the Texas Supreme Court in Henderson

v. Floyd, 891 S.W.2d 252 (Tex. 1995) (orig. proceeding). As the majority notes, the

Henderson Court noted that the real party in interest in that case, Reed, raised factual

issues for the first time on appeal which, if proven correct, would have had ramifications

on the outcome of the underlying motion. See id. at 254–55. The Court properly
concluded that the real party in interest’s contention1 “should be addressed in the first

instance by the district court” and noted that the trial court is not precluded “from

considering changed circumstances which would cast relator’s motion . . . in a different

light.” Id. at 255. The Henderson Court therefore conditioned its granting of mandamus

relief on the absence of such changed circumstances. Id.

        I would adopt that approach in the instant case. The Naims contend that the

Mexican appellate court rendered a final judgment holding that rescission is

unavailable—and that this judgment was announced after the trial court made the

challenged ruling which denied enforcement of the forum selection clause. The Naims

further contend that, as a result of the Mexican court’s action, they amended their

petition in the trial court to remove claims that involve the “construction of” or

“compliance with” the Joint Venture Agreement, the Modification Agreement, or the

Pledge Agreement. Essentially, the Naims are arguing that new facts have come to

light since the trial court made its ruling that would have an effect on the merits of that

ruling. This is precisely analogous to the situation in Henderson. Yet, the Court today

rigidly directs the trial court to enforce the forum selection clause without allowing it to

consider relevant changed circumstances.

        Of course, I agree with the “fundamental tenet of appellate practice” which

requires us to review the actions of the trial court based only on the record before the

trial court at the time it made its ruling.                See, e.g., Beard v. Comm’n for Lawyer

Discipline, 279 S.W.3d 895, 902 (Tex. App.—Dallas 2009, pet. denied) (citing Methodist

        1
           The precise substance of Reed’s contention—that the relator waived his right to disqualify
counsel by failing to move to stay the proceedings while the motion for rehearing was pending, 891
S.W.2d 252, 254 (Tex. 1995) (orig. proceeding)—is irrelevant here. The important fact is that Reed
raised a factual issue that (1) arose too late to have been brought to the attention of the trial court or to be
considered by the appellate court and (2) which could have impacted the merits of the underlying motion.

                                                       2
Hosps. v. Tall, 972 S.W.2d 894, 898 (Tex. App.—Corpus Christi 1998, no pet.)). But I

do not see how this tenet would be violated by making our directive contingent on the

absence of changed circumstances that would, in the words of Henderson, “cast [the

motion to enforce the forum-selection clause] . . . in a different light.”2 I disagree that

such an approach would be akin to “asking the trial court to hit a moving target”; it would

merely allow the trial court to make a decision based on all the available facts. The

Court’s failure to take that approach in this case binds the trial court to make its decision

on old, possibly obsolete facts, and thereby unnecessarily risks a miscarriage of justice.

       I respectfully dissent.



                                                      DORI CONTRERAS GARZA,
                                                      Justice

Delivered and filed the
21st day of June, 2012.




       2
          Similarly, I do not believe that the Texas Supreme Court violated this “fundamental tenet of
appellate practice” in Henderson by conditioning its directive on the absence of changed circumstances
that would “cast relator’s motion . . . in a different light.” Id. at 255.

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