
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-09-00482-CV


James Young, Robert Worrall and Shannon Gustafson, Appellants

v.

Valt.X Holdings, Inc., Dennis L. Meharchand, and Brian Groh, Appellees




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GN-09-001344, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING


O P I N I O N

		Following a securities transaction, James Young, Robert Worrall, and Shannon
Gustafson (collectively, "Buyers") sued Valt.X Holdings, Inc. ("Valt.X"), Dennis Meharchand, and
Brian Groh (collectively, "Sellers") based on numerous claims, including conspiracy, common law
fraud, fraud in a stock transaction, negligence and gross negligence, violations of the Texas
Deceptive Trade Practices Act (DTPA), breach of fiduciary duty, declaratory judgment, rescission
and restitution, breach of contract, and violations of federal and Texas securities laws, including the
Federal Securities Act of 1933, 15 U.S.C.A. §§ 77a-77aa (2009), the Federal Securities Exchange
Act of 1934, 15 U.S.C.A. §§ 78a-78pp (2009), and the Texas Securities Act, Tex. Rev. Civ. Stat.
Ann. arts. 581-1 to 581-43 (Vernon 1964 & Supp. 2009).  Buyers filed their petition in Travis
County district court.  Sellers filed a motion to dismiss, citing a forum-selection clause that stated
that any suits concerning the sale of securities to Buyers must be brought in the courts of Ontario,
Canada.  The trial court granted the motion to dismiss.  We affirm the judgment of the trial court.

BACKGROUND
		In October 2006, Valt.X, an Ontario-based computing company, offered Buyers
common stock through Brian Groh, its promoter.  In February 2007, Buyers purchased $100,000 in
Valt.X stock.  The shareholder agreement concerning the sale of the stock included a forum-selection
clause, which states, "The parties hereto each hereby agrees to the exclusive jurisdiction of the
Courts of Ontario to adjudicate any and all disputes arising under or relating to this Agreement
and/or the sale, purchase or holding of the [Valt.X] Common Shares." (1)
		Buyers allege in their pleadings and on appeal that they later discovered that Groh
made numerous misrepresentations regarding Valt.X in offering the stock to Buyers, and that Valt.X
failed to disclose facts concerning the investment characteristics of the Valt.X stock and the risks
associated with the stock. (2)  Buyers also allege that Valt.X neglected to register a Regulation D filing
with the Securities and Exchange Commission until March 2007, failed to list Groh on the filing,
and overstated its equity by $2.8 million.
		After discovering the alleged misrepresentations regarding the Valt.X stock, Buyers
demanded and were allegedly promised a refund.  When no refund was forthcoming, Buyers filed
suit against Valt.X, Groh, and Dennis Meharchand, the CEO of Valt.X, in Travis County district
court.  The original petition included causes of action for conspiracy, common-law fraud, fraud in
a stock transaction, negligence and gross negligence, DTPA violations, breach of fiduciary duty,
declaratory judgment, rescission and restitution, and violations of the Texas Securities Act.  In an
amended petition, Buyers added a claim for violations of federal securities laws, and also added a
claim for breach of contract that was later dropped.
		Sellers filed a motion to dismiss all of Buyers' claims based on the forum-selection
clause, arguing that any claims relating to the Valt.X stock must, under the shareholder agreement,
be brought in the courts of Ontario, Canada.  The trial court granted the motion and dismissed
Buyers' claims, and this appeal followed.

STANDARD OF REVIEW
		A motion to dismiss is the proper procedural mechanism for enforcing a
forum-selection clause that a party to the agreement has violated in filing suit.  Phoenix Network
Techs. (Europe) Ltd. v. Neon Sys., 177 S.W.3d 605, 610 (Tex. App.--Houston [1st Dist.] 2005, no
pet.).  As with our review of rulings on motions to dismiss generally, we review a trial court's ruling
on a motion to dismiss based on a forum-selection clause for abuse of discretion.  Id.  The test for
abuse of discretion is whether the court acted without reference to any guiding rules and principles
or, stated another way, whether its decision was arbitrary or unreasonable.  City of San Benito
v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003).  However, to the extent that our
review involves contractual interpretation of a forum-selection clause--a legal matter--the standard
of review is de novo.  See Southwest Intelecom, Inc. v. Hotel Networks Corp., 997 S.W.2d 322, 324
(Tex. App.--Austin 1999, pet. denied).

DISCUSSION
		On appeal, Buyers argue that the trial court erred in enforcing the forum-selection
clause and dismissing their claims.  Specifically, Buyers argue that the clause does not apply to their
claims, the antiwaiver provisions of federal and Texas securities laws prevent enforcement of the
forum-selection clause, and the forum-selection clause is invalid because the contract involving the
sale of the stock was tainted by fraud. (3)
		Under federal and Texas law, forum-selection clauses are prima facie valid.  See M/S
Bremen v. Zapata Off-Shore Co. ("The Bremen"), 407 U.S. 1, 9 (1972); (4) In re AIU Ins. Co.,
148 S.W.3d 109, 114 (Tex. 2004) (discussing and adopting reasoning of The Bremen); Phoenix
Network Techs., 177 S.W.3d at 618 (applying standards from The Bremen in dispute involving
forum-selection clause).  The party seeking to enforce a contractual forum-selection provision has
the initial burden of establishing that the parties entered into an agreement to an exclusive forum and
that the agreement applies to the claims involved.  See Phoenix Network Techs., 177 S.W.3d at
611-12 & n.6.  
		Assuming the party seeking enforcement establishes these prerequisites, the burden
shifts to the party opposing enforcement to make a "strong showing" overcoming the prima facie
validity of the forum-selection clause.  Id. at 611 (quoting The Bremen, 407 U.S. at 10).  Under this
framework, a forum-selection clause must be enforced unless "the party opposing enforcement of
the clause can clearly show that (1) enforcement would be unreasonable or unjust, (2) the clause is
invalid for reasons of fraud or overreaching, (3) enforcement would contravene a strong public
policy of the forum where the suit was brought, or (4) the selected forum would be seriously
inconvenient for trial."  In re Lyon Fin. Servs., 257 S.W.3d 228, 231-32 (Tex. 2008) (per curiam);
see In re Automated Collection Techs., 156 S.W.3d 557, 559 (Tex. 2004) (per curiam) (enforcement
of forum-selection clause is "mandatory" unless party opposing enforcement meets this burden); see
also Haynsworth v. Lloyd's of London, 121 F.3d 956, 963 (5th Cir. 1997) (reciting substantively
identical standard under federal law) (citing Carnival Cruise Lines v. Shute, 499 U.S. 585, 595
(1991) and The Bremen, 407 U.S. at 12-13).  The party resisting enforcement of the forum-selection
clause bears a "heavy burden" of proof.  Phoenix Network Techs., 177 S.W.3d at 611 (quoting The
Bremen, 407 U.S. at 15).
Applicability of Clause to Buyers' Claims
		As a threshold matter, we determine whether the forum-selection clause in this case
encompasses the Buyers' claims. (5)  In analyzing the clause, we turn to principles of contract
interpretation.  See Southwest Intelecom, 997 S.W.2d at 324-25.  Our primary objective in construing
a written contract is to ascertain and give effect to the intentions the parties have objectively
manifested in the written instrument.  Frost Nat'l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310,
311-12 (Tex. 2005).  Contract terms are given their plain, ordinary, and generally accepted meanings,
and contracts are to be construed as a whole in an effort to harmonize and give effect to all
provisions of the contract.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005). 
If a contract can be given a certain or definite legal meaning or interpretation, it is not ambiguous
and is construed as a matter of law.  Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).   
		In this case, the clause states, "The parties hereto each hereby agrees to the exclusive
jurisdiction of the Courts of Ontario to adjudicate any and all disputes arising under or relating to
this Agreement and/or the sale, purchase or holding of the [Valt.X] Common Shares."  The plain
language of the clause encompasses each of Buyers' claims, including the fraud, fiduciary duty, and
securities claims that form the basis of this appeal.  Each claim "arises under" or "relates to" the
stock sale or the agreement to purchase the stock signed by Buyers.  See Clark v. Power Mktg.
Direct, Inc., 192 S.W.3d 796, 800 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (holding that
broadly drafted forum-selection clause encompassed claim of fraud in the inducement). 
		Buyers argue that their claims are broader than the scope of the forum-selection
clause.  In support of this argument, Buyers point to a federal case decided by the Eighth Circuit,
Farmland Industries, Inc. v. Frazier-Parrott Commodities, Inc., which also involved claims of fraud
and breach of fiduciary duty relating to the sale of securities.  806 F.2d 848, 851-52 (8th Cir. 1986). 
 In Farmland, the court held a forum-selection clause inapplicable because the "suit was broader than
the clause" in a manner that could not have been anticipated at the time the clause was agreed to. 
Id. at 852.  However, the scope of the allegations was significantly broader in Farmland, as the suit
involved not only the seller of the securities, "but also . . . other individuals outside the securities
brokerages, sham corporations, and other matters not subject to the agreement."  Id.  No similarly
far-reaching allegations are present in this case, as each of Buyers' claims involves events
surrounding the specific transaction for the sale of Valt.X stock.  Accordingly, we conclude that the
language of the forum-selection clause encompasses Buyers' claims.

Antiwaiver Provisions
		We turn next to Buyers' arguments that the forum-selection clause is voided by the 
antiwaiver provisions of federal and Texas securities laws, and that enforcement of the clause
contravenes the public policy embodied in the antiwaiver provisions. (6) See Lyon Fin. Servs.,
257 S.W.3d at 231-32 (holding that forum-selection clauses may be held unenforceable when
"enforcement would contravene a strong public policy of the forum where the suit was brought");
see also Haynsworth, 121 F.3d at 963 (same).
		Section 14 of the Securities Act of 1933 provides: "Any condition, stipulation, or
provision binding any person acquiring any security to waive compliance with any provision of this
subchapter or of the rules and regulations of the Commission shall be void."  15 U.S.C.A. § 77n. 
Section 29(a) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78cc(a), and the antiwaiver
provision of the Texas Securities Act, Tex. Rev. Civ. Stat. Ann. art. 581-33L, are substantively
identical for purposes of the issue before us.  See Haynsworth, 121 F.3d at 966 (comparing
antiwaiver provisions of Securities Act of 1933, Securities Exchange Act of 1934, and Texas
Securities Act). (7)
		Texas courts have not confronted the issue of whether the antiwaiver provisions of
U.S. securities laws bar enforcement of a clause specifying a foreign forum or designating the
application of foreign law.  However, the Fifth Circuit addressed the interplay of forum-selection/choice-of-law clauses and the antiwaiver provisions of federal and Texas securities laws
in Haynsworth.  See id. at 962-63.  The Haynsworth court based its analysis on the U.S. Supreme
Court's decision in The Bremen, which set out the framework for analyzing international contracts
that specified the forum and the applicable law governing disputes.  Id.  In The Bremen, the Supreme
Court stated that courts should enforce choice of law and choice of forum clauses in cases of "freely
negotiated private international agreement[s]."  407 U.S. at 12-13.  In so doing, the Court rejected
as a "parochial concept" the idea that, "notwithstanding solemn contracts, . . . all disputes must be
resolved under our laws and in our courts."  Id. at 9.  This rationale was further explained by the
Supreme Court in Scherk v. Alberto-Culver Co., a securities case, in which the Court held that "[t]o
determine that 'American standards of fairness' must nonetheless govern the controversy demeans
the standards of justice elsewhere in the world, and unnecessarily exalts the primacy of United States
law over the laws of other countries."  417 U.S. 506, 517 n.11 (1974).  Accordingly, the Scherk
Court "rejected the idea that the antiwaiver provisions of U.S. securities laws bar enforcement of
forum-selection clauses in international transactions."  Haynsworth, 121 F.3d at 969. 
		The Haynsworth court also looked to Second Circuit precedent analyzing the practical
consequences of failing to enforce international forum-selection clauses:

It defies reason to suggest that a plaintiff may circumvent forum selection and
arbitration clauses merely by stating claims under laws not recognized by the forum
selected in the agreement. A plaintiff simply would have to allege violations of his
country's tort law or his country's statutory law or his country's property law in order
to render nugatory any forum selection clause that implicitly or explicitly required the
application of the law of another jurisdiction. We refuse to allow a party's solemn
promise to be defeated by artful pleading. 
 Id. at 969 (quoting Roby v. Corporation of Lloyd's, 996 F.2d 1353, 1360 (2d Cir. 1993) (emphasis
in original)).  Based on this logic, and on the Supreme Court precedent in this area, the court
concluded that "the antiwaiver provisions of U.S. securities laws do not bar enforcement of the
[forum-selection] clause."  Id.  The court continued, "The same reasoning compels an identical
conclusion as to the antiwaiver provisions of the Texas Securities Act and the DTPA."  Id.
		In this case, Buyers nonetheless argue that the statutory language of the antiwaiver
provisions voids any contract that would have the effect of waiving enforcement of U.S. securities
laws.  However, Buyers' argument not only conflicts with the result in Haynsworth and the Supreme
Court precedents in The Bremen and Scherk that underpin that decision, but also relies primarily on
a single Ninth Circuit opinion that has been withdrawn. (8) See Govett Am. Endeavor Fund v. Trueger,
112 F.3d 1017 (9th Cir. 1997) (withdrawn by the court May 29, 1998).  Govett was based on Ninth
Circuit precedent holding that the antiwaiver provisions of federal securities law voided forum-selection clauses specifying a foreign forum.  See Richards v. Lloyd's of London ("Richards I"),
107 F.3d 1422 (9th Cir. 1997), overruled on reh'g en banc, 135 F.3d 1289 (9th Cir. 1998). 
However, the precedent on which Govett relied was itself withdrawn and superseded by an en banc
Ninth Circuit, which, citing The Bremen, Scherk, and Haynsworth, held that U.S. securities laws do
not void forum-selection clauses in international agreements.  See Richards v. Lloyd's of London
("Richards II"), 135 F.3d at 1293-94.  Accordingly, Buyers have presented no persuasive authority
for the proposition that the antiwaiver provisions void the forum-selection clause agreed to
in this case. (9)
		Buyers also argue that enforcement of forum-selection clauses like the one at issue
here would "deny [Buyers] and future Texans the protections afforded by" federal and Texas
securities laws, thereby contravening public policy.  However, federal and Texas courts have
explained that public policy "strongly" favors enforcement of forum-selection clauses.  See
Haynsworth, 121 F.3d at 966-67; (10)
 AIU, 148 S.W.3d at 113 (stating that forum-selection clauses
have "the salutary effect of dispelling any confusion about where suits arising from the contract must
be brought and defended, sparing litigants the time and expense of pretrial motions") (quoting Shute,
499 U.S. at 593-94).  Further, the securities laws involved in this appeal would only be affected in
cases where the parties exercised their rights to freely and voluntarily enter into a contract that
mandated that suits be brought in the courts and under the laws of another country.  Any party
wishing to avail itself of the protections of federal or Texas securities laws could choose not to agree
to a forum-selection provision designating a foreign forum or mandating the application of foreign
law.  Accordingly, Buyers have not met their "heavy burden" to show that the forum-selection clause
is unenforceable for public-policy reasons.  See Phoenix Network Techs., 177 S.W.3d at 611.
		Based on this analysis, we are persuaded by the Fifth Circuit's reasoning in
Haynsworth, especially in light of the fact that Texas courts have adopted federal standards for
analyzing forum-selection clauses.  See AIU Ins. Co., 148 S.W.3d at 111-14 (discussing The
Bremen); see also Phoenix Network Techs., 177 S.W.3d at 611-14 (discussing and applying federal
standards regarding forum-selection clauses).  We consequently hold that the antiwaiver provisions
of federal and Texas securities laws do not bar enforcement of the forum-selection cause in this case. 
Fraud or Overreaching
		Buyers next argue that the forum-selection clause is unenforceable because the clause
is invalid for reasons of fraud or overreaching.  See Lyon Fin. Servs., 257 S.W.3d at 231-32 (holding
that forum-selection clauses may be held unenforceable when "the clause is invalid for reasons of
fraud or overreaching"); see also Haynsworth, 121 F.3d at 963 (same).  Specifically, Buyers argue
that, had they "known of the fraud promulgated by Appellees, they would not have entered into
the Agreement."
		Federal courts have held that the fraud or overreaching in question must involve the
negotiation of the forum-selection clause itself: "Fraud and overreaching must be specific to a forum
selection clause in order to invalidate it."  Haynsworth, 121 F.3d at 963 (quoting Scherk, 417 U.S.
at 519 n.14).  Similarly, Texas courts have held that a general allegation of fraud is not sufficient to
bar operation of a forum-selection clause.  See Clark, 192 S.W.3d at 800 (holding that forum-selection clause in contract was enforceable though claim involved pre-contractual fraud in the
inducement); cf. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 134 (Tex. 2004) (enforcing jury-waiver and arbitration clauses and stating that "[a]ny provision relating to the resolution of future
disputes, included as part of a larger agreement, would rarely be enforced if the provision could be
avoided by a general allegation of fraud directed at the entire agreement").  
		Buyers do not argue that the alleged fraud was specific to the forum-selection clause,
but rather that the agreement and the stock transaction as a whole involved fraud.  As discussed
above, this argument conflicts with federal and Texas precedent in this area.  While Buyers rely on
the Farmland case for the proposition that the alleged fraud need not be specific to the forum-selection clause to invalidate it, see 806 F.2d at 851-52, Farmland's analysis of the fraud issue has
been called into question.  See Braspetro Oil Servs. Co.--Brasoil v. Modec (USA), Inc., 240 Fed.
Appx. 612, 617 (5th Cir. 2007) (declining to follow Farmland as "it is inconsistent with our circuit's
precedent that allegations of fraud in the inducement of a contract must relate specifically to the
forum selection clause to render that clause unenforceable") (citing Haynsworth, 121 F.3d at
962-63); Stephens v. Entre Computer Centers, Inc., 696 F. Supp. 636, 640 (N.D. Ga. 1988)
(declining to follow Farmland after concluding that it was inconsistent with Supreme Court
precedent) (citing Scherk, 417 U.S. at 519 n.14); see also Clark, 192 S.W.3d at 800 (enforcing
forum-selection clause in case involving general claim of fraud in the inducement).  Following the
prevailing view in federal and Texas courts, we conclude that enforcement of the forum-selection
clause in this case is not barred due to fraud or overreaching.
		Based on our analysis, we conclude that the trial court did not abuse its discretion in
dismissing Buyers' claims pursuant to the forum-selection clause.

CONCLUSION
		We affirm the judgment of the trial court.

__________________________________________
						Diane M. Henson, Justice
Before Justices Patterson, Puryear and Henson
Affirmed
Filed:   October 15, 2010
1.   The shareholder agreement also included a choice-of-law provision, entitled "Governing
Law," which states, "This Agreement is governed by and shall be construed in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein."
2.   Specifically, Buyers allege that Groh stated that Valt.X stock was guaranteed to generate
a return of ten times Buyers' initial investment, the stock was guaranteed to return all of Buyers'
initial investment, the stock was worth no less than $1 per share, Valt.X was profitable at the time
of the sale of stock, the technology developed by Valt.X would be included in computers shipping
in 2006, licensing fees for the technology would be substantial, revenue-generating agreements had
been completed or were in progress, large banks and financial institutions had invested millions of
dollars in Valt.X, Valt.X was exempt from filing with the U.S. Securities and Exchange
Commission, and Valt.X had raised $4 million as of fall 2006. 
3.   Buyers also argue that Sellers consented to suit in Texas, thereby waiving enforcement of
the forum-selection clause, by filing a Uniform Consent to Service of Process designating an officer
for Valt.X in Texas.  However, while a copy of this consent form was attached to Buyers' brief, it
was not included in the trial record.  Further, Buyers did not invoke any authority in support of their
argument that the forum-selection clause had been waived by the filing of the form.  See Tex. R.
App. P. 38.1(i) (appellant's brief "must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record").  In addition, we note that a party
waives a forum-selection clause only by substantially invoking the judicial process to the other
party's detriment or prejudice, and that there is a strong presumption against such waiver.  See In re
ADM Investor Servs., Inc., 304 S.W.3d 371, 374 (Tex. 2010).
4.   While The Bremen is an admiralty case, two years after it was decided the Supreme Court
"implicitly extended The Bremen's holding beyond the realm of admiralty by applying it to a claim
brought under the federal securities laws" in Scherk v. Alberto-Culver Co., 417 U.S. 506, 518-21
(1974).  Haynsworth v. Lloyd's of London, 121 F.3d 956, 962 (5th Cir. 1997).
5.   Buyers do not challenge the validity of the shareholder agreement or its designation of an
exclusive forum.  See Phoenix Network Techs. (Europe) Ltd. v. Neon Sys., 177 S.W.3d 605, 611, 612
n.6 (Tex. App.--Houston [1st Dist.] 2005, no pet.) (discussing threshold requirements for
enforcement of forum-selection clause). 
6.   While Buyers only challenge the applicability of the forum-selection clause of the
shareholder agreement, many of their arguments concern the law that would be applied to their
claims in Ontario courts.  To the extent that Buyers' arguments implicate the agreement's choice-of-law provision specifying "the laws of the Province of Ontario and the laws of Canada applicable
therein," we note that our analysis of the forum-selection clause applies equally to the applicability
of the choice-of-law provision.  See generally Haynsworth, 121 F.3d 956 (treating international
forum-selection and choice-of-law provisions as identical for purposes of determining validity and
applicability).
7.   Section 29(a) of the Securities Exchange Act of 1934 states, "Any condition, stipulation,
or provision binding any person to waive compliance with any provision of this title or of any rule
or regulation thereunder, or of any rule of a self-regulatory organization, shall be void."  15 U.S.C.A.
§ 78cc(a) (2009).  The antiwaiver provision of the Texas Securities Act states, "A condition,
stipulation, or provision binding a buyer or seller of a security or a purchaser of services rendered
by an investment adviser or investment adviser representative to waive compliance with a provision
of this Act or a rule or order or requirement hereunder is void."  Tex. Rev. Civ. Stat. Ann. art.
581-33L (West Supp. 2009).
8.   Buyers also cite to SEC v. Ross, 504 F.3d 1130, 1139 (9th Cir. 2007), for a general
discussion of the jurisdiction of U.S. courts over claims involving the Securities Act of 1933.  Ross,
however, does not involve a contractual forum-selection clause, and is consequently inapplicable to
the issues in this case.
9.   Buyers also argue that, as Canada has no jurisdiction to hear cases involving U.S. securities
laws, Buyers have "no effective venue to prosecute their claims."  To the extent that this argument
can be construed to allege that the forum-selection clause is "unreasonable or unjust" because it
deprives Buyers of a remedy, see Haynsworth, 121 F.3d at 963, we note that Buyers have not
presented any evidence that Canadian securities laws offer lesser protections than U.S. securities
laws.  Therefore, Buyers have not met their "heavy burden" to invalidate the clause based on a lack
of remedy.  See Phoenix Network Techs., 177 S.W.3d at 611 (discussing burden of proof).
10.   As explained in Haynsworth, "[U]ncertainty as to the forum for disputes and applicable
law will almost inevitably exist with respect to any contract touching two or more countries.  That
is, the elimination of all such uncertainties by agreeing in advance on a forum acceptable to both
parties is an indispensable element in international trade, commerce, and contracting."  121 F.3d at
962 (citing Scherk, 417 U.S. at 516 and M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 13-14
(1972) (internal citations and quotations omitted)).  Accordingly, the "Supreme Court has therefore
instructed American courts to enforce [forum-selection] clauses in the interests of international
comity and out of deference to the integrity and proficiency of foreign courts."  Mitsui & Co. (USA)
v. Mira M/V, 111 F.3d 33, 35 (5th Cir. 1997) (citing Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 629 (1985)).

