                                                                                  ACCEPTED
                                                                              05-18-00915-CV
                                                                    FIFTH COURT OF APPEALS
                                                                              DALLAS, TEXAS
                                                                           12/21/2018 3:08 PM
                                                                                   LISA MATZ
                                                                                       CLERK


                     No. 05-18-00915-CV
                       IN THE COURT OF APPEALS               FILED IN
                                                      5th COURT OF APPEALS
                    FOR THE FIFTH DISTRICT OF TEXAS        DALLAS, TEXAS
                               AT DALLAS              12/21/2018 3:08:58 PM
                                                             LISA MATZ
                                                               Clerk
            TACMED HOLDINGS, INC., AND LORETTA YOUNG
                               Appellants,

                                    v.

    REV RECREATION GROUP, INC. F/K/A ALLIED RECREATION GROUP
                                Appellee.


             On Appeal in Cause No. 296-02909-2017
From the 296th Judicial District Court in and for Collin County, Texas
 Honorable John R. Roach, Jr. of the 296th District Court, Presiding


                          APPELLEE’S BRIEF


    THE LOWMAN LAW FIRM
      Christopher J. Lowman
      State Bar No. 12636480
      Brenton M. Stanfield
      State Bar No. 24054593
    One Allen Center
    500 Dallas Street, Suite 3030
    Houston, TX 77002
    (713) 752-0777
    (713) 752-0778 (Fax)
    chris@lowmanlaw.com

   Counsel for Appellee

                   ORAL ARGUMENT REQUESTED


                                    1
IDENTITY OF PARTIES AND COUNSEL

PARTIES IN THE UNDERLYING SUIT:
Defendant/Appellee:             Rev Recreation Group, Inc., f/k/a Allied
                                Recreation Group

Plaintiff/Appellant:            TACMED Holdings, Inc., and Loretta Young

TRIAL AND APPELLATE COUNSEL:

For Appellee:
Christopher J. Lowman
State Bar No. 12636480
THE LOWMAN LAW FIRM
One Allen Center
500 Dallas Street, Suite 3030
Houston, Texas 77002
Telephone: (713) 752-0777
Facsimile: (713) 752-0778
chris@lowmanlaw.com

For Appellant:

Janice E. Cohen
Texas Bar No. 04508362
Two Turtle Creek
3838 Oak Lawn Avenue
Suite 750 – LB 20
Dallas, Texas 75219
Telephone: (214) 528-7977
Facsimile: (214) 528-7986
jan@janicecohenlaw.com




                                        2
                                               TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................. 2

TABLE OF CONTENTS ................................................................................ 3

INDEX OF AUTHORITIES........................................................................... 4

STATEMENT OF THE CASE ....................................................................... 6

ISSUES PRESENTED.................................................................................... 7

STATEMENT OF FACTS ............................................................................. 7

SUMMARY OF THE ARGUMENT ............................................................. 8

ARGUMENT .................................................................................................. 9

ISSUE 1: THE         TRIAL COURT DID NOT ERR BY ENFORCING THE FORUM
                SELECTION CLAUSE BECAUSE ALL OF APPELLANTS’ CLAIMS ARISE
                UNDER THE CONTRACT CONTAINING THE FORUM SELECTION
                CLAUSE. ......................................................................................... 9

ISSUE 2: THE         TRIAL COURT DID NOT ERR BY ENFORCING THE FORUM
                SELECTION CLAUSE TO REV’S BENEFIT BECAUSE REV’S ONLY
                LIABILITY ARISES FROM THE CONTRACT CONTAINING THE FORUM
                SELECTION CLAUSE AND REV, AS A NON-SIGNATORY, IS ENTITLED
                TO ENFORCE THE CONTRACT......................................................... 13

ISSUE 3: THE TRIAL COURT DID NOT ERR BY FINDING THE FORUM SELECTION
                CLAUSE BINDING ON APPELLANTS DESPITE CLAIMS OF DURESS OR
                FRAUD. ......................................................................................... 18

PRAYER ....................................................................................................... 25

CERTIFICATE OF SERVICE ..................................................................... 26

CERTIFICATE OF COMPLIANCE ............................................................ 26




                                                            3
                                  INDEX OF AUTHORITIES

Deep Water Slender Wells, Ltd. v. Shell Int’l Expl. & Prod.,
234 S.W.3d 679 (Tex.App.—Houston [14th Dist.] 2007, pet. denied) ............10, 11

In re ADM Investor Servs., 304 S.W.3d 371 (Tex.2010) ...............19, 20, 21, 22, 23

In re AIU Ins., 148 S.W.3d 109 (Tex.2004) .....................................................19, 23

In re AutoNation, Inc., 228 S.W.3d 663 (Tex.2007) ........................................19, 20

In re Boehme, 256 S.W.3d 878
(Tex.App.—Fort Worth 2008, orig. proceeding) ....................................................23

In re FirstMerit Bank, 52 S.W.3d 749 (Tex. 2001) ................................................16

In re International Profit Assocs.,
274 S.W.3d 672 (Tex.2009) ............................................... 10, 12, 18, 19, 20, 21, 22

In re Kellogg Brown & Root, Inc., 166 S.W.3d 732 (Tex. 2005) ...........................16

In re Laibe Corp., 307 S.W.3d 314 (Tex.2010) .............................10, 18, 19, 20, 21

In re Lisa Laser USA, Inc., 310 S.W.3d 880 (Tex.2010) .......................................12

In re Lyon Fin. Servs., 257 S.W.3d 228 (Tex.2008) .......................10, 19, 20, 21, 22

In re Nationwide Ins., 494 S.W.3d 708 (Tex.2016) .........................................18, 23

In re Rubiola, 334 S.W.3d 220 (Tex. 2011) ...........................................................14

In re Vesta Ins. Group., Inc., 192 S.W.3d 759 (Tex. 2006) ...................................16

Mabon Ltd. v. Afri-Carib Enters., 29 S.W.3d 291
(Tex.App.—Houston [14th Dist.] 2000, no pet.) ..............................................10, 11

Phoenix Network Techs Ltd. v. Neon Sys.,
177 S.W.3d 605 (Tex.App.—Houston [1st Dist.] 2005, no pet.) ..................9, 10, 11




                                                  4
Pinto Tech. Ventures, L.P. v. Sheldon,
526 S.W.3d 428 (Tex. 2017) .......................................................................14, 15, 17

Ramsay v. Texas Trading Co., 254 S.W.3d 620
(Tex.App.—Texarkana 2008, pet. denied) .............................................................11

RSR Corp. v. Siegmund, 309 S.W.3d 686
(Tex.App.—Dallas 2010, no pet.)..................................................................9, 10, 12

Southwest Intelecom, Inc. v. Hotel Networks Corp.,
997 S.W.2d 322,(Tex.App.—Austin 1999, pet. denied) ........................................11

Stokes Interest, G.P. v. Santo-Pietro, 343 S.W.3d 441
(Tex.App.—El Paso 2010, no pet.) .........................................................................12




                                                     5
                             No. 05-18-00915-CV

                           IN THE COURT OF APPEALS
                        FOR THE FIFTH DISTRICT OF TEXAS
                                   AT DALLAS


                TACMED HOLDINGS, INC., AND LORETTA YOUNG
                                   Appellants,

                                        v.

       REV RECREATION GROUP, INC. F/K/A ALLIED RECREATION GROUP
                                   Appellee.



                             APPELLEE’S BRIEF


TO THE HONORABLE JUSTICES:
      Appellee REV Recreation Group, Inc. f/k/a Allied Recreation Group, Inc.

(“REV”) files this APPELLEE’S BRIEF and will respectfully show as follows.

                        STATEMENT OF THE CASE
      This is a civil suit relating to Appellants’ purchase of two motor coaches

from LDRV Holdings Corp. d/b/a Lazy Days RV Center, Inc., (“LDRV”)

purchased by Appellants in Arizona. Appellants’ recitation of the Statement of the

Case accurately reflects the procedural history of this case.     The trial court

correctly held that a valid and enforceable forum selection clause exists which

requires any lawsuits relating to the motor coaches be filed exclusively in Pima

                                        6
County, Arizona. Accordingly, the trial court dismissed this Texas lawsuit without

prejudice.


                                   ISSUES PRESENTED

ISSUE 1: THE     TRIAL COURT DID NOT ERR BY ENFORCING THE FORUM SELECTION
             CLAUSE BECAUSE ALL OF APPELLANTS’ CLAIMS ARISE UNDER THE
             CONTRACT CONTAINING THE FORUM SELECTION CLAUSE.

ISSUE 2: THE     TRIAL COURT DID NOT ERR BY ENFORCING THE FORUM SELECTION
             CLAUSE TO REV’S BENEFIT BECAUSE REV’S ONLY LIABILITY ARISES
             FROM THE CONTRACT CONTAINING THE FORUM SELECTION CLAUSE AND
             REV, AS A NON-SIGNATORY, IS ENTITLED TO ENFORCE THE CONTRACT.

ISSUE 3: THE     TRIAL COURT DID NOT ERR BY FINDING THE FORUM SELECTION
             CLAUSE BINDING ON APPELLANTS DESPITE CLAIMS OF DURESS OR FRAUD.

                                 STATEMENT OF FACTS

       On or about August 11, 2015, LDRV sold a 2016 Monaco Diplomat motor

home (“Monaco”) to Appellants in Tuscon, Arizona for $309,000.00. Appellants

made a down payment and travelled to Indiana to pick up the Monaco from REV’s

manufacturing plant in Decatur, Indiana. The remaining balance of the sales price

of the Monaco after a trade-in allowance, taxes, fees and a down payment were

applied was $247,200.00. Arizona Revised Statute section 44.286 requires all

retail installment contracts to be in writing. 1 Upon arrival in Indiana, and before


1
  Arizona Revised Statute 44-281(12) defines “retail installment contract” as follows:
(a) Means an agreement, entered into in this state, pursuant to which the title to or a lien upon the
motor vehicle, which is the subject matter of a retail installment transaction, is retained or taken
by a retail seller from a retail buyer as security for the buyer's obligation.
(b) Includes:


                                                 7
completing the transaction, REV presented Appellants with LDRV’s standard

retail installment contract that contains the forum selection clause at issue in this

case.

        The binding retail installment contract (“Contract”) provides the following

forum selection clause in paragraph 15:

        “… ALL LEGAL ACTIONS BROUGHT BY PURCHASER OR
        SELLER RELATING TO THE VEHICLE PURCHASED OR ITS
        SALE, SERVICE OR USE MUST BE FILED EXCLUSIVELY IN
        PIMA COUNTY, ARIZONA.”

On June 16, 2017, Appellants filed this lawsuit in Collin County, Texas against

LDRV and REV alleging violations of the Texas Deceptive Trade Practices Act,

unconscionable acts, breach of warranty, and breach of contract.                           All of

Appellants’ claims in this lawsuit relate to the “vehicle purchased or its sale,

service or use” and are subject to the Contract’s forum selection clause.

                          SUMMARY OF THE ARGUMENT

        REV is not a signatory to the contract. Nevertheless, REV is entitled to

enforce the forum selection clause contained in the Contract against Appellants

because the parties to the Contract clearly intended that “all legal actions brought


(i) A conditional sales contract and a contract for the bailment or leasing of a motor vehicle by
which the bailee or lessee contracts to pay as compensation for its use a sum substantially
equivalent to or in excess of its value and by which it is agreed that the bailee or lessee is bound
to become, or has the option of becoming, the owner of the motor vehicle for no other or a
nominal consideration upon full compliance with the provisions of the contract.
(ii) A secondary motor vehicle finance transaction.



                                                 8
by Purchaser or Seller relating to the [Monaco] or its sale, service or use must be

filed exclusively in Pima County, Arizona” (emphasis added).

      Further, Appellants’ claims against REV seek a direct benefit under the

Contract – enforcement of the warranties conferred in the sale.            Because

Appellants seek to enforce a direct benefit under the Contract against REV, all

such claims against REV are covered by the Contract’s forum selection clause and

REV is entitled to enforce that clause. In addition, REV qualified as a “transaction

participant” to the Contract between Appellants and LDRV for the following

reasons: (a) REV is the manufacturer of the Monaco; (b) Appellants traveled to

REV’s manufacturing facility in Indiana to take possession of the Monaco; (c)

Appellants sued both REV and LDRV; and (d) all of Appellants claims against

REV arise under the Contract.

      Finally, no exceptions apply to the enforcement of the forum selection

clause. The ruling of the trial court should be affirmed.

                                   ARGUMENT

ISSUE 1: THE   TRIAL COURT DID NOT ERR BY ENFORCING THE FORUM SELECTION
           CLAUSE BECAUSE ALL OF APPELLANTS’ CLAIMS ARISE UNDER THE
           CONTRACT CONTAINING THE FORUM SELECTION CLAUSE.

      The Contract includes a clear forum-selection clause that requires mandatory

jurisdiction and venue in Pima County, Arizona. Forum-selection clauses are

contractual provisions in which parties select in advance a particular jurisdiction



                                          9
for resolving their disputes. RSR Corp. v. Siegmund, 309 S.W.3d 686, 700

(Tex.App.—Dallas 2010, no pet.); Phoenix Network Techs. (Eur.) Ltd. v. Neon

Sys., 177 S.W.3d 605, 611 (Tex.App.—Houston [1st Dist.] 2005, no pet.).

Contractual forum-selection clauses are presumed to be valid and enforceable in

Texas. In re Laibe Corp., 307 S.W.3d 314, 316 (Tex.2010); In re International

Profit Assocs., 274 S.W.3d 672, 675 (Tex.2009); In re Lyon Fin. Servs.,

257 S.W.3d 228, 232 (Tex.2008). A motion to dismiss is the appropriate

mechanism for enforcing a forum-selection clause. RSR Corp., 309 S.W.3d at

709; Deep Water Slender Wells, Ltd. v. Shell Int’l Expl. & Prod., 234 S.W.3d 679,

687 (Tex.App.—Houston [14th Dist.] 2007, pet. denied).

      Here, the forum selection clause requires that “all legal actions… relating to

the vehicle purchased or its sale, service or use must be filed exclusively in Pima

County, Arizona”.     This unambiguous language creates a mandatory forum

selection clause that must be enforced.

      A forum-selection clause must be mandatory, not permissive, to be

enforceable. See Phoenix    Network       Techs.   (Eur.)   Ltd.   v.   Neon   Sys.,

177 S.W.3d 605, 615 (Tex.App.—Houston [1st Dist.] 2005, no pet.); Mabon Ltd.

v. Afri-Carib Enters., 29 S.W.3d291, 297 (Tex.App.—Houston [14th Dist.] 2000,

no pet.). If the terms of a forum-selection clause are ambiguous, the court will

apply principles of contract law to determine the parties’ intent. See RSR Corp. v.



                                          10
Siegmund, 309 S.W.3d 686, 700 (Tex.App.—Dallas 2010, no pet.); Phoenix

Network, 177 S.W.3d at 615.

      Mandatory clauses state that a suit must be brought only in the designated

forum; that is, there must be some language explicitly excluding other

forums. Mabon Ltd., 29 S.W.3d at 297; see, e.g., Deep Water Slender Wells, Ltd. v.

Shell Int’l Expl. & Prod., 234 S.W.3d 679, 687 (Tex.App.—Houston [14th Dist.]

2007, pet. denied) (forum-selection clause that stated designated forum had

“exclusive jurisdiction” to resolve suits was mandatory); Phoenix Network,

177 S.W.3d at 615 (forum-selection clause that provided for United Kingdom as

"the venue" for suit was mandatory; use of definite article "the" indicated

exclusivity).

      A permissive clause states that a suit may be brought in a designated forum;

that is, the clause does not require that the suit be brought in that forum. Ramsay v.

Texas Trading Co., 254 S.W.3d 620, 629 (Tex.App.—Texarkana 2008, pet.

denied); Mabon Ltd., 29 S.W.3d at 297. Although the term “shall” in a forum-

selection clause is generally mandatory, without other exclusive language, the

clause may be deemed permissive. See Phoenix Network, 177 S.W.3d at 615; see,

e.g., Mabon Ltd., 29 S.W.3d at 297 (forum-selection clause was permissive even

though it stated Nigeria "shall have venue"; term "shall" did not provide for

exclusive jurisdiction but instead meant only that Nigeria was an acceptable



                                         11
forum); Southwest Intelecom, Inc. v. Hotel Networks Corp., 997 S.W.2d 322, 325-

26 (Tex.App.—Austin 1999, pet. denied) (forum-selection clause was permissive

even though it stated that agreement "shall be governed" by laws of Minnesota and

parties stipulated to jurisdiction and venue there; clause did not mandate exclusive

jurisdiction in Minnesota but instead required parties to submit to jurisdiction in

Minnesota only if suit was brought there).

      Here, the Contract’s forum selection clause is not permissive. The Contract

clearly and simply states, “all legal actions… must be filed exclusively in Pima

County, Arizona”.    This language specifically excludes legal action in every

jurisdiction other than Pima County, Arizona. By the terms of the Contract, this

action must be filed in Pima County, Arizona, not Collin County, Texas.

      Appellants’ claims must fall within the scope of the forum selection clause

for it to be enforceable against Appellants. See In re Lisa Laser USA, Inc.,

310 S.W.3d 880, 884-85 (Tex.2010); Stokes Interest, G.P. v. Santo-Pietro,

343 S.W.3d 441, 445 (Tex.App.—El Paso 2010, no pet.); see also In re

International Profit Assocs., 274 S.W.3d 672, 677 (Tex.2009) (court should use

“common sense” approach in determining whether forum-selection clause covers

P’s claims). That is, the claims must arise from the contractual relationship

between the parties, rather than from any general obligations imposed by




                                        12
law. See In re International Profit, 274 S.W.3d at 678; RSR Corp., 309 S.W.3d at

704.

       The scope of the Contract’s forum selection clause is broad; it covers all

legal actions that relate to “the vehicle purchased or its sale, service or use”.

Appellants’ claims clearly fall within this broad language and a common sense

reading of the forum selection clause in the Contract and Plaintiffs’ Third

Amended Petition make it clear that Appellants’ claims fall within the scope. Each

and every factual allegation centers on Appellants’ complaints about the Monaco,

LDRV and REV’s representations during the sale of the Monaco, LDRV and

REV’s attempts to service and repair the Monaco, and damages arising from

Appellants’ attempted use of the Monaco. Appellants’ Third Amended Petition

states explicitly “Young will show that REV Group… breached its contract to

provide goods that are merchantable and fit for the purpose for which they are

intended.” The only contract between the parties is the Contract, which contains

the forum selection clause.

ISSUE 2: THE    TRIAL COURT DID NOT ERR BY ENFORCING THE FORUM SELECTION
            CLAUSE TO REV’S BENEFIT BECAUSE REV’S ONLY LIABILITY ARISES
            FROM THE CONTRACT CONTAINING THE FORUM SELECTION CLAUSE AND
            REV, AS A NON-SIGNATORY, IS ENTITLED TO ENFORCE THE CONTRACT.

       A.    The Parties’ Chosen Language is Key.

       REV is not a signatory to the Contract. Nevertheless, REV is entitled to

enforce the forum selection clause contained in the Contract against Appellants

                                       13
because the parties declared that “all legal actions brought by Purchaser or Seller

relating to the [Monaco] or its sale, service or use must be filed exclusively in

Pima County, Arizona” (emphasis added), and Appellants’ legal action against

REV relates to the Monaco.

      Further, Appellants’ claims against REV seek a direct benefit under the

Contract. Because Appellants’ seek to enforce a direct benefit under the Contract

against REV – the manufacturer’s warranties conferred to Appellants under the

Contract – they are bound by the Contract’s forum selection clause.

      Whether a forum selection clause applies depends on the intent of the

parties, as expressed in the Contract, and the factual allegations undergirding the

party’s claims rather than the legal causes of action asserted. In re Rubiola, 334

S.W.3d 220, 224-225 (Tex. 2011); See also Pinto Tech. Ventures, L.P. v. Sheldon,

526 S.W.3d 428, 437-441 (Tex. 2017) (forum selection clause in shareholder’s

agreement was enforceable against shareholders’ non-contract tort claims because

tort claims would not have existed but for the existence of the shareholder’s

agreement).

      It is clear that the intent expressed in the Contract is that “all legal actions”

relating to the Monaco, whether brought by Appellants or LDRV, must be brought

in Pima County, Arizona. Appellants factual allegations against REV relate to the




                                         14
“Monaco, or its sale, service or use” and so the forum selection clause applies and

REV, whether a signatory or not, is entitled to enforce it.

      LDRV’s reasoning for including such a far-reaching provision is obvious,

where, as here, “artful pleading” can destroy the preferred forum by adding non-

signatories while maintaining a “legal action” that centers on Appellants’

complaints about the Monaco. See Pinto Tech., 526 S.W.3d at 437; In re Int’l

Profit Assocs., Inc., 274 S.W.3d 672, 677 (Tex. 2009) (orig. proceeding) (quoting

Ginter ex. rel. Ballard v. Belcher, Pindergast & Laporte, 536 F.3d 439, 444 (5th

Cir. 2008) (preventing avoidance of forum selection clause with “artful pleading”

the reason for looking at the intent of the parties and the factual allegations rather

than the legal causes of action asserted).

      The intent of the contracting parties clearly require Appellants’ to bring legal

action against LDRV in Pima County, Arizona, to the extent that legal action

relates to the Monaco. However, Appellant contends that because it non-suited

LDRV at the trial court, REV can no longer enforce the Contract’s forum selection

clause. Despite Appellants’ nonsuit of LDRV, this case substantially revolves

around LDRV’s alleged acts or omissions. Appellants’ Third Amended Petition

speaks extensively of LDRV’s alleged misconduct. As a dealer, LDRV interacted

directly with Appellants. Appellants cite LDRV’s alleged misrepresentations to

induce Appellants to purchase the Monaco as grounds for voiding the Contract.



                                             15
LDRV will undoubtedly supply most of the witnesses in this case. Appellants’ 11th

hour non-suit of LDRV to avoid application of the forum selection clause will not

prevent LDRV from being dragged into this litigation regarding the “sale, service

or use” of the Monaco in Texas either as a party or by proxy – called as witnesses

by both parties to testify about the virtually all of the facts of this case.

       B.   Direct Estoppel supports enforcement of the forum selection clause.

       Texas courts utilize a “direct estoppel” theory when analyzing whether a

non-signatories to an agreement containing forum selection clauses are entitled to

enforce those clauses. See In re FirstMerit Bank, 52 S.W.3d 749, 755 (Tex. 2001);

In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 741 (Tex. 2005) (analysis

applied to arbitration provisions, which are a type of forum selection clause). A

litigant who sues based on a contract subjects itself to the terms of that contract. In

re FirstMerit Bank, 52 S.W.3d at 755.

       Nonparty defendants to a contract can be subjected to the terms of a

contract, and can enforce the contract, if their liability primarily stems from the

contract that contains a forum selection clause, but not if the liability arises from

general legal obligations. In re Vesta Ins. Group., Inc., 192 S.W.3d 759, 761 (Tex.

2006). REV’s only legal obligations to Appellants are the warranties conferred to

Appellants under the Contract when Appellants purchased the Monaco. REV’s

liability does not arise from general legal obligations.



                                            16
      Appellants’ claims against REV are alleged violations of the Texas

Deceptive Trade Practices Act, unconscionable acts, breach of warranty, and

breach of contract. Nevertheless, regardless of the legal claims plead, Appellants’

claims against REV are fundamentally founded on the Contract between

Appellants and LDRV and the warranties conferred by REV to Appellants under

the Contract. Appellants would have no claim against REV without Appellants’

entering into the Contract with LDRV for the purchase of the Monaco in Tucson,

Arizona. Appellants should be estopped from sidestepping the forum selection

clause while seeking to enforce their rights under the Contract that contains it.

      C.     REV Qualifies as a “Transaction Participant”

      Texas courts also recognize that transaction participants can enforce a forum

selection clause even when they themselves are not parties to the contract. Pinto

Tech., 526 S.W.3d at 444-445. Transaction participants are parties closely related

to the contractual relationship such that the non-signatory’s enforcement of the

forum selection clause would be foreseeable. Id. In order to enforce the forum

selection clause, the transaction participant must establish that its enforcement of

comports with the expectations of the parties who contracted. Id.

      Here, there can be no doubt that REV is a transaction participant. REV is

the manufacturer of the Monaco. Appellant contracted with LDRV to purchase the

Monaco, but traveled to REV’s manufacturing facility in Indiana to take



                                          17
possession and consummate the transaction. REV was sued along with LDRV,

and most of the allegations in Appellants’ pleadings relate to LDRV’s alleged acts

and omissions. All of Appellants’ rights to sue under the warranty were conferred

in the Contract. As a result, it is foreseeable that REV would seek to enforce the

forum selection clause contained in the Contract against Appellants and this

comports with Appellants’ legitimate expectations. Accordingly, the trial court did

not err in enforcing the forum selection clause.


ISSUE 3: THE   TRIAL COURT DID NOT ERR BY FINDING THE FORUM SELECTION
           CLAUSE BINDING ON APPELLANTS DESPITE CLAIMS OF DURESS OR FRAUD.

      If Appellants’ claims fall within the scope of the forum-selection clause, the

court must enforce the clause unless Appellants can show an exception to

enforcement or that REV waived the forum selection clause by substantially

invoking judicial process. Appellants have a heavy burden of proof in opposing

the forum selection clause. In re Laibe Corp., 307 S.W.3d at 316; In re

International Profit, 274 S.W.3d at 675. Appellants must clearly show that (1)

enforcement of the clause would be unreasonable and unjust, (2) the clause is

invalid because of fraud or overreaching, (3) enforcement would contravene a

strong Texas public policy, or (4) the selected forum is seriously inconvenient for

trial. In re Nationwide Ins., 494 S.W.3d 708, 712 (Tex.2016); In re ADM Investor




                                         18
Servs., 304 S.W.3d 371, 375 (Tex.2010); In re Lyon Fin. Servs., 257 S.W.3d 228,

231-32 (Tex.2008). None of these exceptions apply here.

      (1) Unjust or Unreasonable

      Appellants must show that enforcement of the clause would be unreasonable

and unjust. In re Laibe Corp., 307 S.W.3d at 316; In re ADM Investor,

304 S.W.3d at 375; In re International Profit, 274 S.W.3d at 675; In re

AutoNation,    Inc.,   228 S.W.3d 663,     668    (Tex.2007); In    re   AIU    Ins.,

148 S.W.3d 109, 112 (Tex.2004). Enforcement is unreasonable and unjust only in

extreme or exceptional circumstances. See In re ADM Investor, 304 S.W.3d at 376.

There is nothing in Appellants’ pleadings or in the evidence presented that in any

way indicates that extreme or exceptional circumstances exist in this case.

       Appellants chose LDRV’s dealership in Tucson, Arizona, to purchase the

Monaco and then traveled to Indiana to take delivery. Signing a written retail

installment contract was legally required to consummate the purchase. Appellants

signed and agreed to a forum selection clause fixing the forum in Tucson, Arizona.

There is nothing extreme or exceptional about the circumstances of this transaction

so as to make enforcement of the forum selection clause unjust or unreasonable.

Appellants chose to purchase a motor home at a dealership in Pima County,

Arizona. It is neither unreasonable nor unjust to litigate any subsequent disputes in

that same county.



                                         19
      (2) Fraud or Overreach

      In the alternative, Appellants must show that the forum selection clause is

invalid because it is the result of fraud or overreaching. In re Laibe Corp.,

307 S.W.3dat 316; In re ADM Investor, 304 S.W.3d at 375; In re Lyon Fin.,

257 S.W.3d at 231-32; In re AutoNation, Inc., 228 S.W.3d at 668. Fraud, in a

forum-selection clause context, is shown by proving the usual elements of

fraud. See In re International Profit, 274 S.W.3d at 678. The claim of fraud must

relate to the forum-selection clause itself, not to the contract as a whole. See In re

Lyon Fin., 257 S.W.3d at 232.

      Appellants have argued that the contract itself was an “extra hurdle” that

Appellants had to comply with before finalizing the purchase of the Monaco. On

the contrary, Arizona law requires a written retail installment contract be signed.

LDRV forwarded their standard retail installment contract to REV in Indiana so

that REV could present it to Appellant for the purpose of consummating the

purchase of the Monaco as required by law. Far from being a “hurdle”, the

Contract was a legal requirement for the transaction and conferred to Appellants

the very warranty rights under which they now sue.

       Arizona Revised Statute section 44-286(A)(2) requires all retail installment

contracts contain the following notice to buyers: “Notice to the buyer: 1. Do not

sign this contract before you read it or if it contains any blank spaces. 2. You are



                                         20
entitled to an exact copy of the contract you sign.” The Contract contains this

notice and it is conspicuously placed above the signature line of the agreement in

bold and all capital letters.    In addition, the Contract contains an additional

disclosure immediately above the signature line that reads:

      By signing below, buyer acknowledges having read the terms and
      conditions of this agreement (front and back), agrees to them, and
      acknowledges receiving a fully completed copy of this agreement.

Appellants signed the Contract subject to these clear and conspicuous notices and

should be barred from claiming the forum selection clause contained in the

Contract was procured by fraud.

      The courts analyze claims of overreaching by determining whether a forum-

selection clause results in unfair surprise or oppression to the party opposing it. In

re International Profit, 274 S.W.3d at 678; see In re Lyon Fin., 257 S.W.3d at 232-

33. Appellants purchased the Monaco from a dealer located in Pima County,

Tucson, Arizona. Appellants cannot reasonably claim surprise or oppression when

the Contract stipulates that legal actions related to the Monaco must be brought in

Pima County, Arizona.

      (3) Against Public Policy.

      In the alternative, Appellants must show that enforcement of the clause

would contravene a strong Texas public policy. In re Laibe Corp., 307 S.W.3d at

316; In re ADM Investor, 304 S.W.3d at 375; In re International Profit,



                                         21
274 S.W.3d at 675; In re Lyon Fin., 257 S.W.3d at 231-32. There are no public

policy grounds for refusing to enforce the forum selection clause contained in the

Contract. REV does not have substantial connections to Texas. REV is located in

Decatur, Indiana. LDRV has no dealerships in Texas, owns no property in Texas,

has no employees in Texas, is not a licensed motor vehicle dealer by the Texas

DMV, did not sell the Monaco to Appellants in Texas, and did not service or repair

the Monaco in Texas. Accordingly, there are no public policy reasons that support

this Texas lawsuit over the contractually agreed situs of Pima, Arizona.

      (4) Serious Inconvenience

      In the alternative, Appellants must show that the selected forum would be

seriously inconvenient such that enforcement of the clause would deprive

Appellants of their day in court. In re Laibe Corp., 307 S.W.3d at 316-17; In re

ADM Investor, 304 S.W.3d at 375; e.g., In re Lyon Fin., 257 S.W.3d at 233-34

(Pennsylvania was not such an inconvenient forum that enforcing forum selection

clause would produce an “unjust result”). Appellants must show that special and

unusual circumstances have developed that would make litigation in the selected

forum extremely difficult and inconvenient. E.g., In re International Profit,

274 S.W.3d at 680 (witnesses’ residences in location other than where suit was

brought was not special or unusual circumstance).




                                        22
      There are no special or unusual circumstances that make litigation in Pima

County, Arizona inconvenient for Appellants. On the contrary, litigation in Collin

County, Texas, a jurisdiction in which neither defendants nor Appellants have any

substantial connection, would be seriously inconvenient for all parties. Almost all

of the witnesses with knowledge of the facts of this case are located in Pima

County, Arizona, or Indiana. Under these facts, it would be inconvenient for the

court not to honor the forum selection clause contained in the Contract.

      (5) Waiver

      Finally, the only remaining alternative is for Appellants to show that REV

waived their right to rely on the clause by substantially invoking judicial process

causing prejudice to Plaintiff. See In re Nationwide Ins., 494 S.W.3d at 712; In re

AIU Ins., 148 S.W.3d at 121; In re Boehme, 256 S.W.3d 878, 884 (Tex.App.—Fort

Worth 2008, orig. proceeding). By filing an answer and motion to dismiss, REV

has not waived its right to rely on the forum selection clause contained in the

Contract. In re ADM Investor, 304 S.W.3d at 374 (filing answer and motion to

transfer venue at same time as motion to dismiss based on forum-selection clause

did not substantially invoke judicial).

      The Contract contains a valid and enforceable mandatory forum selection

clause that requires all legal actions related to the Monaco or its sale, service or use

to be brought in Pima County, Arizona. Appellants’ claims fall within the scope of



                                          23
the forum selection clause. No exception or waiver applies because the forum

selection clause is not unreasonable or unjust, was not procured by fraud and is not

an overreach, is not against public policy, is not a serious inconvenience for

Appellants, and REV has not waived its right to enforce the clause. Therefore, the

trial court did not err in enforcing the forum selection clause.

                                  CONCLUSION

      Appellants and LDRV declared that “all legal actions” related to the

Monaco must be brought in Pima County, Arizona. Appellants are seeking a direct

benefit under the Contract by suing to enforce the REV warranties conferred to

them under the Contract. Accordingly, REV is entitled to enforce the terms of the

Contract against Appellants and require Appellants to bring this legal action in

Pima County, Arizona. The trial court’s judgment that the case be dismissed for

improper forum should be upheld.




                                          24
                                        PRAYER

      For the reasons set forth above, REV prays that this Honorable Court affirm

the trial court’s Order of Dismissal.

                                         Respectfully submitted,

                                         THE LOWMAN LAW FIRM


                                         By:   /s/ Christopher J. Lowman
                                               Christopher J. Lowman
                                               State Bar Number 12636480
                                               Brenton M. Stanfield
                                               State Bar Number 24054593
                                         One Allen Center
                                         500 Dallas Street, Suite 3030
                                         Houston, Texas 77002-4705
                                         Telephone: (713) 752-0777
                                         Telecopier: (713) 752-0778
                                         E-mail: chris@lowmanlaw.com

                                         Attorneys for Appellee REV Recreation
                                         Group, Inc. f/k/a Allied Recreation
                                         Group, Inc.




                                          25
                         CERTIFICATE OF SERVICE

      I certify that the foregoing document was electronically filed with the

Clerk of the Court using the electronic case filing system of the Court. I also

certify that a true and correct copy of the foregoing was served via e-service

on the following counsel of record on December 21, 2018.

Janice E. Cohen
Texas Bar No. 04508362
Two Turtle Creek
3838 Oak Lawn Avenue
Suite 750 – LB 20
Dallas, Texas 75219
Telephone: (214) 528-7977
Facsimile: (214) 528-7986
jan@janicecohenlaw.com

                                    /s/ Christopher J. Lowman
                                    Christopher J. Lowman



                       CERTIFICATE OF COMPLIANCE

      This brief complies with the type-volume limitations of Rule 9.4 because

it contains 4500 words, excluding the portions of the brief exempted by Texas

Rule of Appellate Procedure 9.4(i)(1).


                                    /s/ Christopher J. Lowman
                                    Christopher J. Lowman




                                         26
