Petition for Writ of Mandamus Denied and Memorandum Opinion filed
February 21, 2013.




                                     In The

                    Fourteenth Court of Appeals

                               NO. 14-13-00015-CV



 IN RE DINGO DRILLING, INC. AND MIKE HUSSER, INDIVIDUALLY
           AND D/B/A OILFIELD TOOLS.NET, Relators


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              269th District Court
                             Harris County, Texas
                       Trial Court Cause No. 2010-68079

                   MEMORANDUM OPINION
      Relators, Dingo Drilling, Inc. and Mike Husser, Individually and d/b/a
Oilfield Tools.Net, filed a petition for writ of mandamus in this court. See Tex.
Gov’t Code §22.221; see also Tex. R. App. P. 52. In the petition, relators allege
that a mandatory forum selection clause requires the underlying suit on a contract
for the sale of a drilling rig located in Kazakhstan to be litigated in Kazakhstan.
They ask this court to compel the Honorable Dan Hinde, presiding judge of the
269th District Court in Harris County, to enforce the forum selection clause.

          Transmeridian Exploration Inc. negotiated to sell a drilling rig located in
Kazakhstan to relators. A purported contract contained in a February 6, 2009,
email is signed by Transmeridian’s representative. Relators did not sign the
contract, and they dispute that a contract exists.1 Transmeridian filed for Chapter
11 Bankruptcy protection on March 20, 2009, and a Trustee was appointed to
administer the debtor’s remaining assets, including its claims against relators. The
real party in interest, Gary Neus, is the Liquidating Trustee of the Transmeridian
Exploration Liquidating Trust, who sued relators in 2010 to enforce the contract.
At issue is a clause contained in communications sent during negotiations for the
sale of the rig. The clause provides:

          In the event of a failure to settle the disputes in [sic] by negotiation,
          all disputes and arguments shall be transferred for settlement to the
          court authorities of the Republic of Kazakhstan.

Relators assert that the clause is a mandatory forum selection clause, and the
Trustee is bound by the forum selection clause because he sued on the contract,
citing Texas Business and Commerce Code section 2.201(a) (stating that an
agreement need only be signed by the party charged in order to be enforced) and In
re Cornerstone Healthcare Holding Group, Inc., 348 S.W.3d 538, 543-44 (Tex.
App.—Dallas 2011, orig. proceeding) (applying equitable estoppel to grant
mandamus relief to non-signatory to contract seeking enforcement of forum
selection clause).

1
    The email does not identify the “Seller” and “Buyer” of the rig.
                                                       2
      On October 26, 2012, the trial court denied relators’ motion to dismiss the
Texas suit based on the forum selection clause. The court denied relators’ motion
for reconsideration on January 4, 2013. This proceeding followed. In a single issue,
relators allege that the trial court abused its discretion in failing to enforce the
forum selection clause.

      Mandamus is an extraordinary remedy that will issue only if the trial court
clearly abused its discretion and the party requesting mandamus relief has no
adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124,
135–36 (Tex. 2004). We determine the adequacy of an appellate remedy by
balancing the benefits of mandamus review against its detriments. Id. at 136. In
evaluating benefits and detriments, we consider whether mandamus will preserve
important substantive and procedural rights from impairment or loss. Id. An
appellate remedy is inadequate when a trial court fails to properly apply an
unambiguous mandatory forum selection clause, and mandamus relief is
appropriate. See In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883, 887 (Tex.
2010).

      A trial court abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law, or if it clearly
fails to analyze or apply the law correctly. In re Cerberus Capital Mgmt., L.P., 164
S.W.3d 379, 382 (Tex. 2005). When reviewing the trial court’s decision for an
abuse of discretion, we may not substitute our judgment for that of the trial court
with respect to the resolution of factual issues or matters committed to the trial
court’s discretion. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).

      The Texas Supreme Court has adopted the federal analysis of forum
selection clauses. See Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d
                                         3
777, 793 (Tex. 2005). The Fifth Circuit has held that a mandatory forum selection
clause must “clearly indicate” that the parties intended for the forum to be the
“exclusive” forum for adjudicating disputes arising out of the contract. See Caldas
& Sons, Inc. v. Willingham, 17 F.3d 123, 128 (5th Cir. 1994) (holding that because
of ambiguity in forum selection clause, it was construed as permissive, not
mandatory).

      The forum clause in this case does not express a clear intent that Kazakhstan
is the exclusive jurisdiction for this litigation. Cf. Deep Water Slender Wells, Ltd.
v. Shell Int’l Expl. & Prod., Inc., 234 S.W.3d 679, 683-84 (Tex. App.—Houston
[14th Dist.] 2007, pet. denied) (determining forum selection clause was mandatory
where it stated the agreement “shall be governed exclusively by and interpreted in
accordance with the law” of the designated forum and the parties agree that the
designated forum “shall have exclusive jurisdiction to resolve any controversy or
claim of whatever nature arising out of or relating to” the agreement).

      After considering the parties’ arguments, the cited authorities, and the record
before this court, we conclude that relators have not established that the trial court
abused its discretion. Accordingly, we deny relators’ petition for writ of
mandamus.

                                   PER CURIAM



Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.




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