Affirmed and Memorandum Opinion filed June 26, 2012.




                                            In The

                        Fourteenth Court of Appeals

                                    NO. 14-11-00703-CV

                                MARK HOSKINS, Appellant

                                               V.

 GULF STREAM COACH, INC. AND HOLIDAY WORLD OF HOUSTON L.P.,
                           Appellees


                         On Appeal from the 334th District Court
                                 Harris County, Texas
                           Trial Court Cause No. 2009-66069


                     MEMORANDUM OPINION
      In this Deceptive Trade Practices-Consumer Protection Act (―DTPA‖),1 fraud, and
breach of contract case, appellant Mark Hoskins asserts that the trial court erred by
dismissing his claims against Gulf Stream Coach, Inc. (―Gulf Stream‖) because the
forum-selection clause in Gulf Stream’s warranty documents, which does not comply
with the DTPA’s waiver requirements, runs afoul of the DTPA’s venue provisions. He
further contends that the trial court erred by refusing to reinstate his claims against


      1
          See Tex. Bus. & Comm. Code §§ 17.01–17.926.
Holiday World of Houston L.P. (―Holiday World‖), which he voluntarily nonsuited,
because he met the requisites for a new trial based on newly discovered evidence. We
affirm.

                                        BACKGROUND

          In February 2008, Hoskins, a resident of New Mexico, bought a new recreational
vehicle (―RV‖) from Holiday World in Katy, Texas. This RV had been manufactured by
Gulf Stream. The purchase agreement entered into between Hoskins and Holiday World
contained the following arbitration clause:

          CONTROLLING LAW, VENUE AND ARBITRATION CLAUSE. Any
          and all controversy or claim arising out of or relating to this contract, or any
          claimed breach thereof, shall be resolved by binding arbitration in
          accordance with the applicable Rules of the American Arbitration
          Association, by a sole arbitrator, and judgment upon the award rendered by
          the arbitrator may be entered in any court having Jurisdiction thereof. The
          controlling law shall be the law of the State of Texas. Venue of any
          proceeding shall always be in Harris County, Texas, including the
          arbitration process which is to occur in Harris County, Texas.
That same day, Hoskins also signed Gulf Stream’s Limited Warranty, which included the
following forum-selection clause:

          7. JURISDICTION AND APPLICABLE LAW
          Exclusive jurisdiction for deciding any claims, demands or causes of action
          for defects or representations of any nature or damages due from such
          defects or representations shall be in the courts in the State of Manufacture.
          The laws applicable to any litigation, dispute, mediation, arbitration, or any
          claim whatsoever arising, from the sale, purchase, or use of the recreational
          vehicle shall be those of the State of Manufacture. The State of
          Manufacture of the recreational vehicle is Indiana.
          Shortly after purchasing the RV, Hoskins allegedly began experiencing problems
with it. He claims that he attempted to return the RV to Holiday World, but a Holiday
World employee assured him that the problems could be easily remedied.

          In October 2009, Hoskins sued Holiday World of Houston, LLC and Gulf Stream
for recission and several DTPA claims. Holiday World intervened, correcting its name,


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and filed a cross action against Gulf Stream for indemnity. Relying on the forum-
selection clause excerpted above, Gulf Stream moved to dismiss the claims against it.
Holiday World filed a motion to compel binding arbitration. Hoskins opposed arbitration
and sought a continuance for discovery prior to the hearing on Gulf Stream’s motion to
dismiss and Holiday World’s motion to compel arbitration. The trial court continued the
hearing on the motion to compel arbitration, permitting limited discovery ―specifically
directed to the arbitration agreement.‖ Holiday World was not required to respond to
―merits-based discovery.‖

      In April 2010, Hoskins withdrew his opposition to arbitration and entered into an
agreed order compelling binding arbitration and staying the suit. On April 22, the trial
court ordered Hoskins and Holiday World to proceed to arbitration and stayed the
proceedings as to those two parties. In the arbitration proceedings, Hoskins and Holiday
World agreed to dismiss arbitration pending resolution of Hoskins claims against Gulf
Stream. This December 2010 agreement provided as follows:

      [T]he current arbitration . . . will be dismissed pending resolution of
      MARK HOSKINS[’] claim against the manufacturer. . . . If the
      manufacturer GULF STREAM COACH, INC. goes out of business or
      bankrupt such that an award or Judgment to MARK HOSKINS and against
      the manufacturer GULF STREAM COACH, INC. is not collectible in full
      in a reasonable time, then and in that event MARK HOSKINS may proceed
      in arbitration against HOLIDY WORLD OF HOUSTON, LP. Any dispute
      as to construction or interpretation of this agreement, including what is a
      reasonable time, shall be submitted to the present arbitrator . . . for
      determination.
      No prejudice to MARK HOSKINS results from this agreement unless one
      or more of the following two events occur:
      1. MARK HOSKINS settles with the manufacturer. . . .

      2. MARK HOSKINS does not prevail as against the manufacturer. . . .

      MARK HOSKINS may not proceed against HW and shall release HW in the
      event of 1 or 2 above occurring.
      3. If MARK HOSKINS wins against the manufacturer in that MARK
         HOSKINS has any recovery of any amount of damages or other relief

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            against the manufacturer GULF STREAM COACH, INC.; and then,
            thereafter, the manufacturer . . . goes out of business or bankrupt such
            that MARK HOSKINS’ award or judgment is not fully collectible; then,
            if that occurs, MARK HOSKINS may then proceed with the arbitration
            claim . . . against HOLIDAY WORLD OF HOUSTON, LP.;
            Alternatively, the parties may agree to use the American Arbitration
            Association rules and self administer the binding arbitration
            process . . . . By Agreement the statute of limitations is extended to
            2015.
(emphasis added). In January 2011, Hoskins moved to dismiss without prejudice Holiday
World from the lawsuit. Holiday World also nonsuited its indemnification claims against
Gulf Stream in January 2011.2 The trial court signed an order dismissing Holiday World
without prejudice from the lawsuit later that month.

        Several months later, on May 20, 2011, after a hearing, the trial court granted Gulf
Stream’s motion to dismiss based on the forum-selection clause in the warranty
              3
paperwork.        On June 16, 2011, Hoskins filed a document entitled ―PLAINTIFF’S
SUPPLEMENTAL PETITION AGAINST HOLIDAY WORLD OF HOUSTON, L.P. AND GULF
STREAM COACH, INC. AND MOTION FOR WITHDRAWAL OF ORDER DISMISSING
HOLIDAY WORLD OF HOUSTON, L.P. WITHOUT PREJUDICE FROM THIS SUIT AND
RESCISSION OF THE PARTIES’ AGREEMENT TO DISMISS HOLIDAY WORLD OF
HOUSTON, L.P. DUE TO FRAUDULENT INDUCEMENT BY HOLIDAY WORLD OF
HOUSTON, L.P.‖ (the ―supplemental petition‖). He also filed a motion to reconsider the
trial court’s dismissal of Gulf Stream.



        2
         The record reflects that the trial court signed orders granting Holiday World’s ―Nonsuit of Cross
Action Without Prejudice‖ of its claims for indemnification against Gulf Stream on January 5th and 6th,
2011. Holiday World nonsuited its intervention in June 2011, but this later nonsuit appears to be of no
effect because Holiday World had already nonsuited its claims against Gulf Stream and had no other
pending claims against any party.
        3
          During the pendency of this appeal, Hoskins filed a motion to abate pursuant to Texas Rule of
Appellate Procedure 27.2. Hoskins asserted that there was no final judgment in the court below. We
denied this motion in December 2011 because the May 20, 2011 order dismissing Gulf Stream from the
proceedings, coupled with Hoskins’ nonsuit of Holiday World and Holiday World’s nonsuit of its cross-
claims against Gulf Stream, constituted a final judgment. See, e.g., Lehmann v. Har-Con Corp., 39
S.W.3d 191, 200 (Tex. 2001) (stating that a judgment that finally disposes of all remaining parties and
claims, based on record in the case, is final regardless of its language).

                                                    4
      In the supplemental petition and the motion to reconsider, Hoskins alleged that he
had been fraudulently induced into purchasing the RV and into entering into the
agreement to dismiss Holiday World from the lawsuit and arbitration. He based his
allegations on documents he had obtained from Gulf Stream during discovery indicating
that Holiday World had had Gulf Stream repair defective wiring in the RV Hoskins had
later purchased. According to Hoskins, these documents established that both Holiday
World and Gulf Stream were aware that the RV was defective before he purchased it. In
the supplemental petition, Hoskins asserted fraudulent inducement claims against both
Holiday World and Gulf Stream as to his purchase of the RV, as well as a claim that
Holiday World had fraudulently induced him to agree to dismiss it from the lawsuit and
from arbitration. On June 27, 2011, Hoskins filed a notice of submission, stating that his
supplemental petition would be heard by submission on July 11, 2011. On July 7, 2011,
Hoskins filed a ―FIRST SUPPLEMENT TO PLAINTIFF’S MOTION FOR
WITHDRAWAL OF ORDER DISMISSING HOLIDAY WORLD OF HOUSTON, L.P.
WITHOUT PREJUDICE FROM THIS SUIT AND RESCISSION OF THE PARTIES’
AGREEMENT TO DISMISS HOLIDAY WORLD OF HOUSTON, L.P. DUE TO
FRAUDULENT INDUCEMENT BY HOLIDAY WORLD OF HOUSTON, L.P.,‖
accompanied by an affidavit because he ―was advised by the Court that he would not be
granted a hearing, but the Court would consider his Motion by Submission.‖ The trial
court signed an order denying Hoskins’ Motion for Reconsideration as to Gulf Stream on
August 1, 2011. That same day, it also signed an order denying Hoskins ―Motion for
Withdrawal of Order and Recission of Agreement filed June 16, 2011.‖ This appeal
timely followed.

                                       ANALYSIS

A.    Hoskins’ Claims Against Gulf Stream

      In his first issue, Hoskins asserts that the trial court erred in dismissing his claims
against Gulf Stream because the mandatory venue provision of the DTPA guarantees him
a right to venue in Harris County. He bases his assertion on the argument that the failure

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of Gulf Stream’s forum-selection clause to comply with the DTPA’s anti-waiver
provision violates Texas public policy and invalidates the clause. We review a trial
court’s grant of a motion to dismiss based on a forum-selection clause under an abuse-of-
discretion standard. Deep Water Slender Wells, Ltd. v. Shell Int’l Exploration & Prod.,
Inc., 234 S.W.3d 679, 687 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Hoskins has
not asserted that the claims at issue in this case do not fall within the parameters of the
forum-selection clause in the Gulf Stream warranty. Instead, he contends that the venue
provision of the DTPA guarantees him venue in Harris County.4 We disagree.

        Forum and venue are separate but related concepts. ―Forum‖ refers to a sovereign,
typically a state in our system of civil justice. E.g., In re Great Lakes Dredge & Doc Co.,
L.L.C., 251 S.W.3d 68, 73–74 (Tex. App.—Corpus Christi 2008, orig. proceeding).
―Venue,‖ on the other hand, concerns the propriety of prosecuting a case within a
particular forum. E.g., id. Here, Hoskins asserts that because the DTPA provides for
venue in Texas, it must follow that Texas is an appropriate forum for all DTPA claims.
But Hoskins begs the question: venue determinations follow forum selection. In other
words, for a Texas venue statute to apply, Texas must first be the appropriate forum. See
id. Here, it is undisputed that the warranty documents contain a forum-selection clause
mandating Indiana as the forum for any disputes. Thus, because Texas is not a proper
forum for his dispute with Gulf Stream, the mandatory venue provision of the DTPA is
never triggered.

        Hoskins further argues that because the forum-selection clause in the Gulf Stream
warranty, to which he agreed, waives his right to venue under the Texas DTPA, it must
comply with the waiver provision of the DTPA. See Tex. Bus. & Com. § 17.44(a)
(stating that a waiver by a consumer of any provisions of the DTPA is contrary to public
policy and unenforceable unless certain requirements are met). But because Texas venue
        4
          See Tex. Bus. Comm. Code § 17.56 (―Except as provided by Article 5.06-1(8), Insurance Code,
an action brought which alleges a claim to relief under Section 17.50 of this subchapter shall be brought
as provided by Chapter 15, Civil Practice and Remedies Code.‖). Chapter 15 of the Texas Civil Practice
and Remedies Code is entitled ―Venue‖ and sets out various venue provisions, both mandatory and
permissive. See Tex. Civ. Prac. & Rem. Code §§ 15.001–.100.

                                                   6
is never at issue, the waiver provisions of the DTPA do not apply, and Hoskins has not
―waived‖ them. Cf. Accelerated Christian Education, Inc. v. Oracle Corp., 925 S.W.2d
66, 74 (Tex. App.—Dallas 1996, no pet.) (concluding that forum-selection clause
specifying that parties would litigate in a forum other than Texas did not constitute an
impermissible waiver of rights under the DTPA), overruled in part on other grounds by In
re Tyco Electronics Power Systems, Inc., No. 05–04–01808–CV, 2005 WL 237232 (Tex.
App.—Dallas Feb.2, 2005, orig. proceeding) (mem. op.).

      In sum, Hoskins has not challenged the validity of the forum-selection clause
except through the logically fallacious assertions that (a) because the DTPA contains a
mandatory venue provision, Texas must be an appropriate forum for his DTPA claims
and (b) because by selecting a forum other than Texas necessarily waives his DTPA
venue rights, the forum-selection clause must comply with the waiver provision of the
DTPA, which it does not.       For the foregoing reasons, we reject these arguments.
Accordingly, we overrule Hoskins’ first issue.

B.    Hoskins’ Claims Against Holiday World

      In his second issue, Hoskins asserts that the trial court erred by denying his motion
for new trial regarding his nonsuit of Holiday World because he met the requirements for
a new trial based on newly-discovered evidence. However, as discussed above, Hoskins
voluntarily nonsuited his claims against Holiday World in January 2011. If a claim is
timely nonsuited, the controversy as to that claim is extinguished, the merits become
moot, and jurisdiction as to the claim is lost. See Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010); Univ. of Tex. Med. Branch at Galveston v. Estate of
Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam).

      Upon realizing the impropriety of a nonsuit, however, a plaintiff may move the
court to reinstate the cause or for a new trial. See Harris County Appraisal Dist. v.
Wittig, 881 S.W.2d 193, 194 (Tex. App.—Houston [1st Dist.] 1994, no writ). The court
has the discretion to permit reinstatement when appropriate. See Griffin v. Miles, 553
S.W.2d 933, 935 (Tex. Civ. App.—Houston [14th Dist.] 1977, writ dism’d) (stating that

                                            7
whether to reinstate lies within the trial court’s sound discretion).     As indicated by
Hoskins’ pleadings in the court below, Hoskins sought reinstatement of his claims against
Holiday World based on his allegation that Holiday World had fraudulently induced him
to nonsuit it from the case. Thus, we consider whether the trial court abused its discretion
by refusing to reinstate Hoskins’ claims against Holiday World.

       Here, as discussed above, Hoskins and Holiday World entered into an arbitration
agreement. Hoskins agreed that he would not pursue claims against Holiday World if he
were unsuccessful in his suit against Gulf Stream. When he entered into this arbitration
agreement, Gulf Stream’s motion to dismiss was pending before the trial court, and
Hoskins was represented by counsel. Hoskins was unsuccessful in his suit against Gulf
Stream. Under these circumstances, we cannot say the trial court abused its discretion by
refusing to reinstate Hoskins’ claims against Holiday World. See id.; see also Williams v.
McManemy, No. 14-06-00876-CV, 2009 WL 838139, at *5 (Tex. App.—Houston [14th
Dist.] March 31, 2009, pet. denied) (mem. op.).

       Moreover, even if we consider Hoskins supplemental petition a motion for new
trial, a party seeking a new trial on grounds of newly-discovered evidence must establish
that (1) the evidence has come to his knowledge since the trial, (2) the failure to discover
the evidence sooner was not due to a lack of diligence, (3) the evidence is not cumulative,
and (4) the evidence is so material it would probably result in a different outcome if a
new trial were granted. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex.
2010). We review the denial of such a motion for new trial for an abuse of discretion. Id.

       As noted above, Hoskins filed his supplemental petition/motion for new trial on
June 16, 2011. Hoskins asserts that he is entitled to a new trial because the documents
produced by Gulf Stream during discovery indicated that both Gulf Stream and Holiday
World were aware that the RV he purchased had electrical problems before he purchased
it.   As discussed above, prior to a hearing on Holiday World’s motion to compel
arbitration, Hoskins was permitted a continuance for limited discovery ―specifically
directed to the arbitration agreement.‖ These documents are ―merits-based discovery‖

                                             8
rather than documents ―specifically directed to the arbitration agreement.‖ Hence, there
is nothing to indicate that these documents were discoverable prior to arbitration.
Additionally, Hoskins supplemental motion and affidavit were filed on July 7, 2011,
more than thirty days after the final judgment dismissing Gulf Stream was signed in this
case. ―Read together, Rules 5, 329(b) and 329b(3) demonstrate that an amended motion
for new trial filed more than thirty days after the trial court signs a final judgment is
untimely.‖ Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003). Finally, we note that, as
part of the arbitration agreement Hoskins entered into with Holiday World, he agreed to
arbitrate any disputes with Holiday World. The parties also agreed that the statute of
limitations for arbitration would be extended until 2015. Thus, Hoskins may pursue any
claims he has against Holiday World through arbitration. For these reasons, we cannot
say that the trial court abused its discretion in denying Hoskins’ motion. See, e.g.,
Martini v. City of Pearland, No. 14-11-00111-CV, 2012 WL 1345744, at *7–8 (Tex.
App.—Houston [14th Dist.] April 17, 2012, no pet. h.) (mem. op.) (emphasizing that
determination of motion for new trial based on newly-discovered evidence is matter
generally left to sound discretion of trial court).

       Because Hoskins has not established that the trial court abused its discretion in
either (a) refusing to reinstate his claims against Holiday World or (b) denying his
supplemental petition/motion for new trial, we overrule Hoskins’ second issue.

                                       CONCLUSION

       We have overruled Hoskins’ two issues on appeal. We affirm the trial court’s
judgment.


                                            /s/       Adele Hedges
                                                      Chief Justice

Panel consists of Chief Justice Hedges and Justices Seymore and Brown.




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