In re Great Lakes Dredge & Dock Co., L.L.C.

• Decision Date: 10 January 2008
• Docket Number: No. 13-07-437-CV.,13-07-437-CV.
• Citation: 251 S.W.3d 68
• Parties: In re GREAT LAKES DREDGE & DOCK COMPANY, L.L.C.
• Court: Texas Court of Appeals

251 S.W.3d 68

In re GREAT LAKES DREDGE & DOCK COMPANY, L.L.C.

No. 13-07-437-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

January 10, 2008.

James T. Brown, Alexander C. Papandreou, Michael J. Wray, Legge, Farrow, Kimmitt, McGrath & Brown, LLP, Houston, Edmundo O. Ramirez, Ellis, Koeneke & Ramirez, L.L.P., McAllen, for appellant.

Anthony G. Buzbee, Sean O'Rourke, The Buzbee Law Firm, Galveston, Aaron I. Vela, The Buzbee Law Firm, Edinburg, for Real Party in Interest, Nelson Ramos.

Before Justices YAÑEZ, RODRIGUEZ, and BENAVIDES.

OPINION

Opinion by Justice BENAVIDES.

Relator, Great Lakes Dredge & Dock Company, L.L.C. ("Great Lakes"), requests this Court to issue a writ of mandamus ordering the Respondent, the Honorable Ricardo Rodriguez, Jr.,¹ to enforce a venue-selection agreement. Finding no abuse of discretion, we deny Great Lakes's petition.

I. BACKGROUND

Nelson Ramos was employed by Great Lakes beginning in 2006. Upon his employment, he was required to sign a document titled, "Employee Acceptance of Forum Selection" (hereinafter "the Agreement").² The Agreement provides as follows:

As a condition of employment with Great Lakes Dredge & Dock Company LLC, the EMPLOYEE and Great Lakes Dredge & Dock Company, LLC mutually agree that any claim for personal, emotional, physical, or economic injury [including death] pursuant to Federal law, general maritime law, the Jones Act, or the laws of any State, or otherwise arising out of EMPLOYEE'S employment with Great Lakes Dredge & Dock Company, LLC shall, if ever made the basis of litigation initiated by EMPLOYEE be filed, at the option of the EMPLOYEE, in any one of the following jurisdictions only:

(a) the Circuit Court for the County of DuPage, State of Illinois; or

(b) The Court designated below in the State of residence of the EMPLOYEE or in the State in which the accident made the basis of the lawsuit occurred, as follows:

                STATE     STATE COURT
                Florida   Clay County
                Texas     District Courts of Harris
                          County, Texas
                

or

(c) The United States Federal District Court in the State of residence of the EMPLOYEE or in the State in which the accident made the basis of the lawsuit occurred, as follows:

                STATE     FEDERAL COURT
                Florida   Middle District of Florida
                          Jacksonville Division
                ....
                Texas     Southern District of Texas,
                          Houston Division
                

It is undisputed that on May 5, 2006, Ramos signed the Agreement and began working for Great Lakes. Ramos was laid off on June 10, 2006, at the completion of a dredging project, but he was rehired on June 19, 2006, to begin another project aboard the Dredge ILLINOIS, a vessel owned and operated by Great Lakes. Ramos allegedly sustained injuries aboard that vessel in August 2006.

On January 23, 2007, Ramos filed suit against Great Lakes in Hidalgo County District Court, alleging that his injuries were the result of maritime negligence and the Dredge ILLINOIS's unseaworthiness. Ramos asserted claims under the Jones Act, 46 U.S.C. § 30104 (2006) (formerly codified at 46 U.S.C. app. § 688).³ Great Lakes responded with a Motion to Dismiss or, in the alternative, Motion to Transfer Venue and, subject thereto, Special Exceptions and Answer. Great Lakes argued that the Agreement mandated that suit be filed in either a state district court in Harris County, Texas, or in the United States District Court for the Southern District of Texas, Houston Division.⁴

Ramos filed a response, arguing that the "mandatory venue provision for the Jones Act requires Plaintiff's suit to be brought in Hidalgo County; and ... [t]he forum selection clause is vague, unjust, and unreasonable." Attached to the response was an affidavit signed by Ramos, stating that while working on a job in Florida, he was "forced" to sign the Agreement. He states that he was told by a Great Lakes representative "that if [he] did not sign the form [he] would be terminated." Finally, he states that he did not receive any consideration for signing the form. Ramos also filed a short brief setting out authority for his positions.

Judge Rodriguez held a hearing on Great Lakes's motion to dismiss or, in the alternative, transfer. Great Lakes's petition for writ of mandamus states that arguments were presented at the hearing, but no other evidence was presented. See TEX.R.APP. P. 52.7(a)(2). On June 6, 2007, Judge Rodriguez denied Great Lakes's motion to dismiss without stating the reasons for his ruling. The mandamus proceeding followed.

II. MANDAMUS STANDARD

Mandamus is an extraordinary remedy that is available when the relator demonstrates that the trial court clearly abused its discretion and that it has an inadequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004) (orig. proceeding). A trial court abuses its discretion when it "`reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.'" Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (1985) (orig. proceeding)). A review of a trial court's legal determinations is not entitled to deference — "a trial court has no `discretion' in determining what the law is or applying the law to the facts." Id. at 840.

The relator must also show that his or her appellate remedy is inadequate. In re Prudential, 148 S.W.3d at 135-36. The Texas Supreme Court has explained that this element requires a practical and prudential analysis, requiring consideration of both public and private interests. Id. at 136. "An appellate remedy is `adequate' when any benefits to mandamus review are outweighed by the detriments. When the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate." Id.

III. ENFORCEABILITY OF VENUE SELECTION AGREEMENT

Great Lakes asserts that the trial court abused its discretion in refusing to enforce a forum-selection agreement. Great Lakes argues that, under the Texas Supreme Court's recent pronouncements, forum-selection agreements are presumptively enforceable, and Ramos has not raised a valid defense to enforcement. See In re AutoNation, Inc., 228 S.W.3d 663, 668 (Tex.2007) (orig. proceeding); Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 793 (Tex.2005) ("[E]nforcement of a forum-selection clause is mandatory absent a showing that `enforcement would be unreasonable and unjust, or that the clause was invalid due to fraud or overreaching.'"); In re Automated Collection Tech., Inc., 156 S.W.3d 557, 559 (Tex. 2004) (orig. proceeding); In re AIU Ins. Co., 148 S.W.3d 109, 111-15 (Tex.2004) (orig. proceeding).

In response, Ramos asserts that the mandatory venue statute in place at the time suit was filed, former Texas Civil Practice & Remedies Code section 15.018, provided that Ramos's Jones Act claim could be brought in Hidalgo County, where Ramos resided. Additionally, under that same section, suit could not be brought in Harris County.⁵ He argues that, under the Texas Supreme Court's decisions in Leonard v. Paxson⁶ and Fidelity Union Life Ins. Co. v. Evans,⁷ a party's pre-suit agreement to set venue in a particular county that is contrary to a mandatory venue statute is void and unenforceable. Great Lakes counters that Leonard and Fidelity were decided prior to the supreme court's recent trend of enforcing forum-selection agreements and are effectively supplanted. For the following reasons, we disagree with Great Lakes.

A. Terminology — "Venue" v. "Forum."

In this case, the parties have used "forum" and "venue" interchangeably. We pause to note the difference between the two terms to avoid any confusion about our holding. Each term has a distinct legal meaning that must be carefully observed, even though in some instances, Texas case law has muddled the distinction between the two.⁸ Accelerated Christian Educ., Inc. v. Oracle Corp., 925 S.W.2d 66, 68 n. 1 (Tex.App.-Dallas 1996, no pet.) ("`[V]enue' has a particular legal meaning in Texas...."), overruled on other grounds, In re Tyco Elecs. Power Sys., Inc., No. 05-04-01808-CV, 2005 WL 237232, at *5 & n. 1, 2005 Tex.App. LEXIS 819, at *11-12 & n. 1 (Tex.App.-Dallas 2005, orig. proceeding) (mem. op.); see also Liu v. CiCi Enters., L.P., No. 14-05-00827-CV, 2007 WL 43816, at *2-3, 2007 Tex.App. LEXIS 81, at *6-7 (Tex.App.-Houston [14th Dist.] Jan. 9, 2007, no pet.) (mem. op.) ("The distinction between a forum selection clause and a venue selection clause is critical.").

"Forum" generally refers to a sovereign or a state. See Scott v. Gallagher, 209 S.W.3d 262, 264 (Tex.App.-Houston [1st Dist.] 2006, no pet.) ("[V]enue `refers to the propriety of prosecuting, in a particular form, a suit on a given subject matter with specific parties, over which the forum must, necessarily, have subject-matter jurisdiction.'") (emphasis added). In contrast, "[a]t common law, `venue' meant `the neighborhood, place, or county in which the injury is declared to have been done or in fact declared to have happened.'" State v. Blankenship, 170 S.W.3d 676, 681 (Tex.App.-Austin 2005, pet. ref'd) (quoting BLACK'S LAW DICTIONARY 1557 (6th ed.1991)). In Texas, "venue" refers to the county in which suit is proper within the forum state. Accelerated Christian Educ., Inc., 925 S.W.2d at 73; Estrada v. State, 148 S.W.3d 506, 508 (Tex.App.-El Paso 2004, no pet.). Thus, a "forum"-selection agreement is one that chooses another state or sovereign as the location for trial, whereas a "venue"-selection agreement chooses a particular county or court within that state or sovereign.

Great Lakes does not dispute that under the contract and under federal law,⁹ Ramos has the right to bring his Jones Act claim in Texas state court. In fact, the Agreement expressly states that the choices provided are entirely "at the option of the EMPLOYEE." The only disagreement, it appears, is whether Ramos was required to adhere to...