Greenwood v. Tillamook Country Smoker, Inc.

• Decision Date: 27 May 1993
• Docket Number: No. 01-92-01195-CV,01-92-01195-CV
• Citation: 857 S.W.2d 654
• Parties: Jim L. GREENWOOD, Appellant, v. TILLAMOOK COUNTRY SMOKER, INC., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 654

857 S.W.2d 654

Jim L. GREENWOOD, Appellant, v. TILLAMOOK COUNTRY SMOKER, INC., Appellee.

No. 01-92-01195-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

May 27, 1993.

Lisa Greenwood, John M. Frick, Cheryl K. Harper, Houston, for appellant.

J. Grady Randle, Houston, for appellee.

Before MIRABAL, DUGGAN and WILSON, JJ.

OPINION

MIRABAL, Justice.

This case involves a lawsuit "forum selection clause" in a contract. Appellant, Jim L. Greenwood, appeals from a judgment dismissing his lawsuit without prejudice. We affirm.

Greenwood, a Texas resident, filed suit seeking declaratory relief against R.J. Overton, Inc. (Overton) and Tillamook Country Smoker, Inc. (Tillamook), an Oregon corporation, alleging fraud and breach of contract in connection with a distributorship agreement and guaranty. ¹ Additionally, Greenwood sought indemnification from Overton for any liability arising under the guaranty. ²

Paragraph 5.05 of the distributorship agreement between Greenwood and Tillamook stated:

[T]his Agreement shall be governed in all respects and aspects by the laws of the State of Oregon in the United States of America and the parties hereby agree that any legal action concerning this Agreement shall be brought in a court of competent jurisdiction in the State of Oregon.

Additionally, a guaranty signed by Jim L. Greenwood and Katy Greenwood stated:

In case suit be brought to enforce the guaranty or any claim arising thereunder, it is hereby expressly agreed that at the option of said creditor or the holder hereof, the jurisdiction and venue of such suit may be laid in the County of Tillamook, State of Oregon.

In response to Greenwood's original petition, Tillamook filed a "special appearance to present motion objecting to jurisdiction," relying on the forum selection clauses in the contracts as grounds for the trial court to dismiss the suit. The trial court denied the special appearance. Tillamook then filed a motion for reconsideration and motion to dismiss, which incorporated its prior arguments and additionally stated:

On April 24, 1992, the parties appeared to argue the original Special Appearance filed by TILLAMOOK. The Court at that time indicated that it wished to enforce the forum selection clause contained in the contracts rejecting Texas jurisdiction attached to the Motion for Special Appearance and attached to this Motion as Exhibit "A". The Court suggested the Defendant file a Motion to Dismiss which this Motion represents.

Tillamook thereafter supplemented its motion to dismiss with a copy of an order of the Oregon circuit court denying Greenwood's motion to dismiss the suit Tillamook had brought in Oregon to collect on Greenwood's alleged past due account under the same distributorship agreement. Tillamook's suit in Oregon had been filed after Greenwood's suit, but before the petition in Greenwood's Texas suit was served on Tillamook. The Oregon court decided to retain jurisdiction, finding, in part, that Greenwood had consented to Oregon jurisdiction.

Greenwood filed responses to Tillamook's pleadings, arguing that Texas has a compelling interest in the suit because Texas residents were defrauded by an out-of-state corporation; the contracts were negotiated in, and performable in part in Texas; the forum selection clauses were not freely negotiated and therefore are unenforceable; and Texas is the most convenient forum for the litigation.

On June 12, 1992, the trial court signed an order dismissing Greenwood's case against Tillamook. Because the order does not state the case is dismissed with prejudice, it is presumed the dismissal is without prejudice. In the Interest of Hughes, 770 S.W.2d 635, 637 (Tex.App.--Houston [1st Dist.] 1989, no writ).

In his first point of error, Greenwood asserts the trial court erred in dismissing the suit because the contractual forum selection clauses do not deprive the trial court of its ability to exercise personal jurisdiction over Tillamook.

In support of his argument, Greenwood cites Dowling v. NADW Marketing, Inc., 578 S.W.2d 475, 475-76 (Tex.Civ.App.--Eastland 1979, writ ref'd n.r.e.), Leonard v. Paxson, 654 S.W.2d 440, 441 (Tex.1983), and Fidelity Union Life Insurance Co. v. Evans, 477 S.W.2d 535, 537 (Tex.1972). These cases are not applicable because they stand for the proposition that parties cannot enforce venue provisions in contravention of specific venue statutes. In this case, there is no specific venue statute.

Tillamook, in response to point of error one, agrees the forum selection clauses do not deprive the trial court of its ability to exercise personal jurisdiction over Tillamook. It is not Tillamook's position that it is not amenable to personal jurisdiction in Texas, but rather that the trial court had the authority to refuse to exercise personal jurisdiction over Tillamook because of the forum selection clauses in the...