NUMBER 13-14-00126-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE THOMAS AGRESTI

On Petition for Writ of Mandamus.

NUMBER 13-14-00149-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE ING AMERICA EQUITIES, INC. AND SECURITY LIFE OF DENVER 

INSURANCE COMPANY

On Petition for Writ of Mandamus.

NUMBER 13-14-00154-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG
2

IN RE AMERICAN GENERAL LIFE INSURANCE COMPANY AND 

AMERICAN INTERNATIONAL GROUP, INC.

On Petition for Writ of Mandamus.

NUMBER 13-14-00168-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE NELSON P. TODD, ORCHARD FINANCIAL GROUP, LLC, AND 

ORCHARD ADMINISTRATORS, LLC

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Longoria

Memorandum Opinion by Chief Justice Valdez1

Raul A. Marquez M.D. and Rosario Parra, M.D., Trustee of the Raul A. Marquez 

Trust Fund dated 9/03/03 (the “Marquez Trust”), brought suit against American 

International Group Inc., American General Life Insurance Company, ING American 

Equities Inc., ING Security Life Insurance Company of America, Security Life of Denver 

Insurance Company, Thomas Agresti, Orchard Financial Group, LLC, Orchard 

 

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not 

required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
3

Administrators, LLC, Nelson P. Todd, and Alberto Morales for, inter alia, 

misrepresentation, fraud, civil conspiracy, negligent misrepresentation, and unjust 

enrichment pertaining to the defendants’ financial planning services and the purchase 

and sale of premium-financed life insurance policies. By four consolidated original 

proceedings, the defendants, relators herein, contend that the trial court erred in denying 

their motions to dismiss the underlying lawsuit based on a forum selection clause in the 

representation agreement between Dr. Marquez and Agresti:

2

 Because we conclude that 

the forum selection clause is permissive rather than mandatory, we deny the petitions for 

writ of mandamus.

I. BACKGROUND

On September 2, 2003, Dr. Marquez signed an Agreement for Representation 

("the Agreement") with attorney Thomas Agresti and his firm, Agresti & Associates, L.L.C. 

(collectively "Agresti"). The Agreement provided that Agresti would provide services to 

Dr. Marquez including “implementation of your 2003 Tax Plan” and “ongoing general legal 

matters.” The Agreement specifically sets out the scope of services that Agresti would 

provide as follows:

We will collect all necessary data from you or your designated agent. After 

a comprehensive analysis we shall prepare an Initial Plan Presentation of 

our findings which shall include recommendations of appropriate strategies, 

financial impact of these strategies, costs to implement and costs to 

maintain. These recommendations will become your Plan. After a thorough 

review and discussion of your Plan, we will be responsible for implementing 

and maintaining the agreed upon portions of your Plan, as indicated in the 

attached Schedule A, in a manner that best meets your objectives.

 

2 The consolidated original proceedings are: In re Agresti, filed in cause number 13-14-00126-CV, 

In re ING America Equities, Inc. and Security Life of Denver Insurance Company, filed in cause number 13-

14-00149-CV, In re American General Life Insurance Company and American International Group, Inc., 

filed in cause number 13-14-00154-CV, and In re Nelson P. Todd, Orchard Financial Group, LLC, and 

Orchard Administrators, LLC, filed in cause number 13-14-00168-CV. Alberto Morales, although a 

defendant in the proceedings below, opposes the motions to dismiss on the basis of the forum selection 

clause and appears in these original proceedings as a real party in interest.
4

The Agreement further details Dr. Marquez's responsibilities under the Agreement 

and outlines the fee structure for Agresti and the other professionals who would be 

involved in the contemplated transactions. The Agreement contains the forum selection 

clause at issue in these original proceedings. The paragraph containing the clause 

provides:

This Agreement, and the application or interpretation thereof, shall be 

governed exclusively by its terms and by the laws of the State of Colorado. 

You agree that, in any action relating to or arising from this Agreement, the 

State of Colorado is the proper jurisdiction and that Denver is the proper 

venue to hear any such action.

On September 12, 2003, Agresti sent the Initial Plan Presentation (the “Plan”) 

contemplated in the Agreement to Dr. Marquez. The Plan proposed, in part, that an 

irrevocable trust be created to hold a large life insurance policy on Dr. Marquez and that 

the benefits of the policy would be used to offset the estate taxes that would be due upon 

Dr. Marquez's death. Under the Plan, the trust would obtain a loan to finance the payment 

of the premiums for the policy, and while the policy itself would serve as the primary 

source of collateral for the loan, Dr. Marquez would initially need to provide additional 

outside collateral for the loan. This outside collateral was to be a letter of credit pledged 

by Dr. Marquez. The parties proceeded to execute the Agreement and Plan. 

Six years later, on September 19, 2009, Dr. Marquez and the Marquez Trust 

brought suit against the relators alleging that:

Beginning in 2003, Defendants, individually and collectively, led Dr. 

Raul A. Marquez and his wife, Dr. Rosario Parra, down a path toward what 

they were told would be their future financial security. The path ended up 

leading them directly into a financial storm of greed, recklessness and fraud. 

According to Defendants, the investment to obtain financial security 

was life insurance. The price for such financial security was minimal, 
5

because it would be financed by others and the risk for such financial 

security was low because interest rates were so low and investments were 

doing so well. The investment would pay for itself. Beginning on December 

28, 2003, when a life insurance policy was issued by the ING Defendants, 

Defendants flipped and churned life insurance policies and charged 

hundreds of thousands of dollars for premiums, interest, management fees, 

load fees, policy fees and numerous other expenses, all designed to take 

as much as they could from Dr. Marquez. Finally, after five and a half years 

of the financial fiasco, Dr. Raul A. Marquez found himself out of pocket for 

millions of dollars, and without any life insurance to protect his estate.

On January 25, 2011, Agresti filed a motion to dismiss the lawsuit based on the forum 

selection clause in the Agreement. In separate motions, the other relators also filed 

motions to dismiss based on the forum selection clause in the Agreement. 

On April 4, 2011, the trial court heard arguments on the motions to dismiss and, at 

that hearing, requested additional briefing from the parties. On May 21, 2013, the trial 

court issued an order denying the relators’ motions to dismiss.3 These original 

proceedings ensued. The relators contend generally that the trial court abused its 

discretion in denying their motions to dismiss because the forum selection clause in the 

Agreement requires that the lawsuit be filed in Colorado. The Court has requested and 

received responses to the petitions from real parties in interest, Dr. Marquez and the 

Marquez Trust, and from the real party in interest, Morales, and have also received replies 

to these responses from relators.

 

3 The real parties contend that mandamus relief is barred by laches and relators’ dilatory actions in 

failing to diligently pursue relief based on the forum selection clause. The underlying lawsuit was filed in 

2009, the relators’ answers had been filed by February 2010, the motions to dismiss were filed in January 

2011, the hearing on the motions to dismiss was held in April 2011, relators requested a status conference 

and one was held in June 2012, the trial court denied the motions to dismiss on May 21, 2013, and these 

original proceedings ensued beginning on February 26, 2014 and ending on March 18, 2014. In response, 

relators contend, inter alia, that they did not receive notice of the trial court’s order denying their motions to 

dismiss until January 16, 2014. It seems evident that a three-year delay in obtaining a ruling on a dispositive 

motion, without accompanying evidence pertaining to a diligent and systematic effort to obtain a ruling, is 

problematic at best. However, given our conclusion that mandamus relief is not warranted in this case on 

other grounds, we need not further discuss this issue. See TEX. R. APP. P. 47.1, 47.4. 
6

II. STANDARD OF REVIEW

Mandamus is appropriate when the relator demonstrates that the trial court clearly 

abused its discretion and the relator has no adequate remedy by appeal. In re Reece, 

341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 

S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). The relator has the burden of 

establishing both prerequisites to mandamus relief, and this burden is a heavy one. In re 

CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding). 

A trial court clearly abuses its discretion if it reaches a decision that is so arbitrary 

and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails 

to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital 

Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The 

adequacy of an appellate remedy must be determined by balancing the benefits of 

mandamus review against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 

(Tex. 2008) (orig. proceeding). Because this balance depends heavily on circumstances, 

it must be guided by the analysis of principles rather than the application of simple rules 

that treat cases as categories. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 

2008) (orig. proceeding). We evaluate the benefits and detriments of mandamus review 

and consider whether mandamus will preserve important substantive and procedural 

rights from impairment or loss. In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. 

The Texas Supreme Court has repeatedly held that mandamus relief is available 

to enforce a forum selection clause in a contract. See, e.g., In re Fisher, No. 12-0163, 

2014 WL 801160, at *5 (Tex. Feb. 28, 2014) (orig. proceeding); In re Lisa Laser USA, 

Inc., 310 S.W.3d 880, 883 (Tex. 2010) (orig. proceeding); In re Laibe Corp., 307 S.W.3d 
7

314, 316 (Tex. 2010) (orig. proceeding) (per curiam); In re ADM Investor Servs., Inc., 304 

S.W.3d 371, 374 (Tex. 2010) (orig. proceeding); In re Int’l Profit Assocs., 286 S.W.3d 921, 

922 (Tex. 2009) (orig. proceeding) (per curiam); In re Int’l Profit Assocs., 274 S.W.3d 672, 

674 (Tex. 2009) (orig. proceeding) (per curiam); In re AutoNation, Inc., 228 S.W.3d 663, 

665 (Tex. 2007) (orig. proceeding); In re AIU Ins. Co., 148 S.W.3d 109, 115–19 (Tex. 

2004) (orig. proceeding). A trial court abuses its discretion when it fails to properly 

interpret or apply a forum selection clause. In re Lisa Laser USA, Inc., 310 S.W.3d at 

883; In re Laibe Corp., 307 S.W.3d at 316. Further, an appellate remedy is inadequate 

when a trial court improperly refuses to enforce a forum selection clause because allowing 

the trial to go forward will “vitiate and render illusory the subject matter of an appeal,” that 

is, trial in the proper forum. In re AIU Ins. Co., 148 S.W.3d at 115 (quoting Jack B. Anglin 

Co. v. Tipps, 842 S.W.2d at 269, 272 (Tex. 1992)); accord In re Laibe Corp., 307 S.W.3d 

at 316. Allowing a lawsuit to proceed in a forum other than that for which the parties 

contracted “promotes forum shopping with its attendant judicial inefficiency, waste of 

judicial resources, delays of adjudication of the merits, and skewing of settlement 

dynamics.” In re Fisher, 2014 WL 801160, at *5; see In re Lisa Laser USA, Inc., 310 

S.W.3d at 883.

III. FORUM SELECTION CLAUSES

Forum-selection clauses are contractual arrangements whereby parties agree in 

advance to submit their disputes for resolution within a particular jurisdiction. See Burger 

King Corp. v. Rudzewicz, 471 U.S. 462, 473 n. 14 (1985); RSR Corp. v. Siegmund, 309 

S.W.3d 686, 700 (Tex. App.—Dallas 2010, no pet.); Phoenix Network Techs. (Eur.) Ltd. 

v. Neon Sys., Inc., 177 S.W.3d 605, 611 (Tex. App.—Houston [1st Dist.] 2005, no pet.). 
8

The enforcement of valid forum-selection clauses, bargained for by the parties, protects 

the parties’ “legitimate expectations” and furthers “the vital interests of the justice system,” 

such as sparing litigants the time and expense of pretrial motions to determine the proper 

forum for disputes. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988) (Kennedy, 

J., concurring); see also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 594 (1991); 

RSR Corp., 309 S.W.3d at 700; Phoenix Network Techs., 177 S.W.3d at 611. The Texas 

Supreme Court has adopted the federal analysis of forum selection clauses to determine 

their enforceability. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 793 

(Tex. 2005); In re Automated Collection Technologies, Inc., 156 S.W.3d 557, 558–59 

(Tex. 2004) (orig. proceeding); In re AIU Ins. Co., 148 S.W.3d at 111–14; Diamond 

Offshore (Bermuda), Ltd. v. Haaksman, 355 S.W.3d 842, 846 (Tex. App.—Houston [14th 

Dist.] 2011, pet. denied); see also In re Dingo Drilling, Inc., No. 14-13-00015-CV, 2013 

WL 645206, at *2 (Tex. App.—Houston [14th Dist.] Feb. 21, 2013, orig. proceeding) (per 

curiam mem. op.). 

Forum selection clauses are presumptively valid. In re Laibe Corp., 307 S.W.3d 

at 316; In re Int’l Profit Assocs., 274 S.W.3d at 680; Stokes Interest, G.P. v. Santo-Pietro,

343 S.W.3d 441, 444 (Tex. App.—El Paso 2010, no pet.). While there may be “extreme 

circumstances” that prevent the enforcement of forum selection clauses, there is not “a 

bright-line test for avoiding enforcement of forum selection clauses.” In re ADM Investor 

Servs., 304 S.W.3d at 376 (following M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 

17 (1972)). A trial court abuses its discretion in refusing to enforce a forum selection 

clause unless the party opposing enforcement clearly shows: (1) enforcement would be 

unreasonable or unjust, (2) the clause is invalid for reasons of fraud or overreaching, (3) 
9

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 Laibe 

Corp., 307 S.W.3d at 316; In re ADM Investor Servs., 304 S.W.3d at 375; see also In re 

Brown, No. 05-13-01354-CV, 2013 WL 6115855, at *1 (Tex. App.—Dallas Nov. 21, 2013, 

orig. proceeding). The burden of proof is heavy for the party challenging enforcement. 

In re Laibe Corp., 307 S.W.3d at 316; In re ADM Investor Servs., 304 S.W.3d at 375; see 

also In re Brown, 2013 WL 6115855, at *1.

A motion to dismiss is the proper procedural mechanism for enforcing a forumselection clause. Young v. Valt.X Holdings, Inc., 336 S.W.3d 258, 261 (Tex. App.—Austin 

2010, pet. dism’d); Ramsay v. Tex. Trading Co., 254 S.W.3d 620, 626 (Tex. App.—

Texarkana 2008, pet. denied). While we review the trial court's ruling on a motion to 

dismiss for abuse of discretion; see In re Lyon Fin. Servs., 257 S.W.3d 228, 231–32 (Tex.

2008) (orig. proceeding) (per curiam), to the extent that our review involves the 

construction or interpretation of an unambiguous contract, the standard of review is de 

novo. Phoenix Network Techs., 177 S.W.3d at 610; see also W. Tex. Hospitality, Inc. v. 

Enercon Int'l, Inc., No. 07-09-0213-CV, 2010 WL 3417845, at *4 (Tex. App.—Amarillo 

Aug. 31, 2010, no pet.) (mem. op.). 

IV. PERMISSIVE OR MANDATORY NATURE OF FORUM SELECTION CLAUSE

Relators contend that the trial court erred in denying their motions to dismiss 

because the forum selection clause in the Agreement is valid and binding and 

encompasses the claims against them raised in this lawsuit. In response, the real parties 

contend, inter alia, that the forum selection clause is not mandatory or exclusive, and thus 

the trial court did not err in denying their motions to dismiss. Relators contend that the 
10

real parties waived this issue by failing to raise it in the trial court. The real parties did not 

raise this issue in their written responses to the motions to dismiss; however our review 

of the reporter’s record on the hearing to dismiss indicates that the real parties argued 

that the forum selection clause was not mandatory at the hearing on the motions to 

dismiss. Counsel for the real parties expressly argued that the clause at issue is a “proper 

venue” clause and “not an exclusive forum selection clause.” Counsel specifically 

asserted that “[i]f the parties want to contract for exclusive venue or [an] exclusive place 

of jurisdiction, they could have so stated and they did not.” Relators did not include the 

reporter’s record from this hearing in their petitions on grounds that “no testimony was 

adduced in connection with the matter complained.” See TEX. R. APP. P. 52.7(a)(2). 

While relators were not required to include a transcript of the hearing with their mandamus 

records because the hearing was not evidentiary, they were nevertheless required to fairly 

represent the record and include all relevant and material information. 

Accordingly, before determining whether the forum selection clause is mandatory 

and enforceable, we first address whether the forum selection clause is mandatory or 

merely permissive. See, e.g., Sw. Intelecom, Inc. v. Hotel Networks Corp., 997 S.W.2d 

322, 324–25 (Tex. App.—Austin 1999, pet. denied). 

A forum selection clause can be mandatory and exclusive, or permissive in nature. 

See In re Fisher, 2014 WL 801160, at *8; Caldas & Sons, Inc. v. Willingham, 17 F.3d 123, 

127 (5th Cir. 1994). A mandatory forum selection clause requires that all litigation be 

conducted in a specified forum. UNC Lear Servs., Inc. v. Kingdom of Saudi Arabia, 581 

F.3d 210, 219 (5th Cir. 2009); LeBlanc v. C.R. England, Inc., 961 F.Supp.2d 819, 828

(N.D. Tex. 2013). For a forum selection clause to be considered mandatory or exclusive, 
11

the clause “must go beyond establishing that a particular forum will have jurisdiction and 

must clearly demonstrate the parties' intent to make that jurisdiction exclusive.” City of 

New Orleans v. Mun. Admin. Servs., Inc., 376 F.3d 501, 504 (5th Cir. 2004); see Keaty 

v. Freeport Indonesia, Inc., 503 F.2d 955, 956–57 (5th Cir.1974) (per curiam); UNC Lear 

Servs., Inc., 581 F.3d at 219; LeBlanc, 961 F.Supp.2d at 828; Valero Mktg. & Supply Co. 

v. Gen. Energy Corp., 702 F.Supp.2d 706, 712 (S.D. Tex. 2010); see also TruGreen 

Landcare, L.L.C. v. Telfair Cmty. Ass'n, Inc., CIV.A. No. H-12-514, 2013 WL 2147471, at 

*2 (S.D. Tex. May 14, 2013). Where the agreement contains clear language showing that 

jurisdiction is appropriate only in a designated forum, the clause is mandatory. Von 

Graffenreid v. Craig, 246 F.Supp.2d 553, 560 (N.D. Tex. 1997). Stated otherwise, “[a]n 

enforceable forum selection clause must contain explicit language regarding exclusivity.” 

Mabon Ltd. v. Afri-Carib Enterprises, Inc., 29 S.W.3d 291, 297 (Tex. App.—Houston [14th 

Dist.] 2000, no pet.).

In contrast, a permissive forum selection clause, often described as a “consent to 

jurisdiction” clause, authorizes venue in a designated forum but does not prohibit litigation 

elsewhere. LeBlanc, 961 F.Supp.2d at 828; Von Graffenreid, 246 F.Supp.2d at 561.

Consenting to the jurisdiction of one forum does not necessarily mean that a party has 

selected an exclusive forum and waived its right to have the case heard in different 

forums. City of New Orleans, 376 F.3d at 504. Thus, a forum selection clause providing 

that a particular court “shall” have jurisdiction over a controversy may be permissive, even 

though use of the term “shall” is typically mandatory, because it does not foreclose the 

possibility that other courts may also have jurisdiction. See Caldas & Sons, Inc., 17 F.3d 

at 127–28; Keaty, 503 F.2d at 956–57; see also TruGreen Landcare, L.L.C., 2013 WL 
12

2147471, at *2.

When the terms of a forum selection clause are neither clearly mandatory nor 

permissive, but instead ambiguous in nature, the court applies principles of contract law 

to discern the parties' intent, if possible. Caldas & Sons, Inc., 17 F.3d at 127; Keaty, 503 

F.2d at 957; LeBlanc, 961 F.Supp.2d at 828; RSR Corp., 309 S.W.3d at 700; Phoenix 

Network Techs., 177 S.W.3d at 615; Sw. Intelecom, Inc., 997 S.W.2d at 324–25. Under 

settled contract principles, when a forum selection clause is ambiguous, it should be 

construed against the drafting party. Caldas & Sons, 17 F.3d at 127; see Tenneco, Inc. 

v. Greater Lafourche Port Comm'n, 427 F.2d 1061, 1065 (5th Cir. 1970); LeBlanc, 961 

F.Supp.2d at 828.4 

In applying the foregoing principles, courts have determined that various forum 

selection clauses which specify a particular jurisdiction, but do not exclude others, do not 

create a mandatory and enforceable forum selection clauses. See, e.g., Mabon Ltd., 29 

S.W.3d at 297 (holding that a forum selection provision was permissive where it provided 

that “the laws of the Federal Government of Nigeria will apply and the Federal District of 

Nigeria shall have venue”); Sw. Intelecom, Inc., 997 S.W.2d at 323 (holding that a forum 

selection provision was permissive where it provided that “[t]his Agreement shall be 

governed by the laws of the State of Minnesota. The Parties stipulate to jurisdiction and 

venue in Ramsey County, Minnesota, as if this Agreement were executed in Minnesota.”);

Sutton v. Advanced Aquaculture Sys., Inc., 621 F. Supp. 2d 435, 443 (W.D. Tex. 2007)

 

4 See City of New Orleans v. Mun. Admin. Servs., Inc., 376 F.3d 501, 504–06 (5th Cir. 2004) 

(holding that a forum-selection clause in which a party to the contract “consent[ed] and yield[ed] to the 

jurisdiction of the State Civil Courts of the Parish of Orleans” was not mandatory because it was “susceptible 

to more than one reasonable interpretation”); Keaty v. Freeport Indonesia, Inc., 503 F.2d 955, 956–57 (5th 

Cir. 1974) (holding that a negotiated forum-selection clause stating that “the parties submit to the jurisdiction 

of the courts of New York” was not mandatory because it was “subject to opposing, yet reasonable, 

interpretations” and did not “clearly limit[ ] actions thereunder to the courts of a specified locale”).
13

(holding that forum selection clause was permissive where it stated that “[t]his contract 

shall be construed and performed in accordance with [the] laws of the State of Florida 

and jurisdiction and venue for any litigation arising out of it may be laid in Hillsborough 

County, Florida.”); see also In re Dingo Drilling, Inc., 2013 WL 645206, at *2 (concluding 

that a forum selection clause was permissive where it provided “[i]n the event of a failure 

to settle the disputes [in] by negotiation, all disputes and arguments shall be transferred 

for settlement to the court authorities of the Republic of Kazakhstan”); Apollo Prop. 

Partners, LLC v. Diamond Houston I, L.P., No. 14-07-00528-CV, 2008 WL 3017549, at 

*3 n.4 (Tex. App.—Houston [14th Dist.] Aug. 5, 2008, no pet.) (mem. op.) (stating that a 

forum selection clause was permissive where it provided that “[t]he parties irrevocably 

submit to the jurisdiction of any Illinois court, or federal court sitting in Cook County, 

Illinois, to enforce ruling [sic] arising out of or relating to this Agreement; and the parties 

consent to Cook County, Illinois and irrevocably waive to the fullest extent permitted by 

law, any objection to such venue as being an inconvenient forum”); TruGreen Landcare, 

L.L.C., 2013 WL 2147471, at *3 (holding that a forum selection clause was permissive 

where it provided that the “parties stipulate and agree that venue for any action brought 

hereunder shall [properly] lie in the state and federal courts situated in Fort Bend County, 

Texas”); Safety-Kleen Sys., Inc. v. McCoy Freightliner, Inc., No. 4:10-CV-608, 2011 WL 

2009958, at *4 (E.D. Tex. Apr. 11, 2011), report and recommendation adopted, 2011 WL 

1986201 (E.D. Tex. May 23, 2011) (holding that a forum selection was permissive where 

it stated “[t]his Agreement shall be interpreted and enforced according to the Laws of the 

State of Texas and the parties agree to submit to the jurisdiction of the courts of the State 

of Texas for any disputes arising under this Agreement.”); Moody v. Aqua Leisure Int'l, 
14

CIV.A. No. H-10-1961, 2010 WL 4955397, at **2–3 (S.D. Tex. Nov. 30, 2010) (holding 

that a forum selection clause was permissive where it stated that “jurisdiction and venue 

shall lie with the state and federal courts located in Comal and/or Travis County, Texas.”). 

In contrast, courts have determined that forum selection clauses that evidence a 

clear intent to make that jurisdiction exclusive to be mandatory in application. See, e.g., 

In re Fisher, 2014 WL 801160, at *1 (holding that a forum selection clause was mandatory 

where it provided that “each of the parties irrevocably submits to the non-exclusive 

jurisdiction of each such court in any such proceeding, waives any objection it may now 

or hereafter have to venue or to convenience of forum, agrees that all claims in respect 

of the proceeding may be heard and determined in any such court and agrees not to bring 

any proceeding arising out of or relating to this Agreement in any other court.”); Ramsay,

254 S.W.3d at 626 (holding that a forum selection clause was mandatory where it 

provided that “[a]ll actions or proceedings arising . . . from this agreement or any 

transaction covered hereby, shall be governed by the law of Illinois and may, at the 

discretion and election of [ADM], be litigated in a court whose situs is within Illinois”); Deep 

Water Slender Wells, Ltd. v. Shell Int'l Expl. & Prod., Inc., 234 S.W.3d 679, 683–84 (Tex.

App.—Houston [14th Dist.] 2007, pet. denied) (determining forum selection clause was 

mandatory where it stated that the agreement “shall be governed exclusively by and 

interpreted in accordance with the law of The Netherlands, and the parties irrevocably 

agree that the courts of The Hague, The Netherlands shall have exclusive jurisdiction to 

resolve any controversy or claim of whatever nature arising out of or relating to the 

[agreement] or breach thereof”); Phoenix Network Tech., 177 S.W.3d at 610 (holding that 

a forum selection clause was mandatory where it provided that “[t]he parties hereby agree 
15

that this Agreement and the provisions hereof shall be construed in accordance with 

English law and the venue for resolution of any disputes arising out of this Agreement 

shall be the United Kingdom”); Valero Mktg. & Supply Co., 702 F.Supp.2d at 712 (holding 

that a forum selection clause was mandatory where it stated that the parties “agree that 

the sole jurisdiction for any claims shall be in state or federal courts located in Harris 

County[,] Texas”).

In the instant case, the paragraph at issue in the Agreement includes both a choice 

of law provision and a forum selection provision. The choice of law provision is both 

specific and exclusive: “This Agreement, and the application or interpretation thereof, 

shall be governed exclusively by its terms and by the laws of the State of Colorado.” The 

use of “shall” typically, although not always, indicates a mandatory requirement, see 

Caldas & Sons, Inc., 17 F.3d at 127–28; Keaty, 503 F.2d at 956–57; and the clause 

expressly excludes the application of other law through the term “exclusively.” 

The forum selection clause, in contrast, provides broadly that “the State of 

Colorado is the proper jurisdiction and that Denver is the proper venue to hear any such 

action.” Relators contend that under authorities such as Phoenix Network and Ramsey, 

the forum selection clause is mandatory. See Ramsay, 254 S.W.3d at 626; Phoenix 

Network Tech., 177 S.W.3d at 610. We conclude that these cases are distinguishable. 

In Ramsey, the forum selection clause provided that “[a]ll actions or proceedings arising 

. . . from this agreement or any transaction covered hereby, shall be governed by the law 

of Illinois and may, at the discretion and election of [ADM], be litigated in a court whose 

situs is within Illinois.” See Ramsay, 254 S.W.3d at 626. This clause gave one party the 

unilateral right to dictate the venue, and the forum selection clause in this case contains 
16

no such unilateral option. In Phoenix Network, the forum selection clause provided that 

“the venue for resolution of any disputes . . . shall be the United Kingdom. See Phoenix 

Network Tech., 177 S.W.3d at 610. The court concluded that the term “shall” generally 

indicates a mandatory requirement, and the use of the definitive article “the” rather than 

“a” indicated that the parties intended for the U.K. to be the exclusive venue. See id. at 

615–16. In contrast, the forum selection here contains no mandatory language such as 

“shall,” and, although the forum selection clause uses the definitive article “the,” that 

usage alone does not express the clear intent that the forum is exclusive. See, e.g.,

Keaty, 503 F.2d at 956–57; see also Apollo Prop. Partners, LLC, 2008 WL 3017549, at 

*3 n.4; TruGreen Landcare, L.L.C., 2013 WL 2147471, at *3; Safety-Kleen Sys., Inc., 

2011 WL 2009958, at *4. Although relators contend that usage of “the” as a definitive 

article indicates that the clause is exclusive, we do not construe contracts or decide cases 

based on the inclusion or exclusion of “magic words.” Falk & Fish, L.L.P. v. Pinkston's 

Lawnmower & Equip., Inc., 317 S.W.3d 523, 527 (Tex. App.—Dallas 2010, no pet.); see 

Deep Nines, Inc. v. McAfee, Inc., 246 S.W.3d 842, 846 (Tex. App.—Dallas 2008, no pet.). 

Instead, we read the forum selection clause in its entirety and strike to give meaning to 

every sentence, clause, and word to avoid rendering any portion inoperative. Phoenix 

Network Tech., 177 S.W.3d at 615. In doing so, we conclude that the forum selection 

clause is permissive rather than mandatory because it does not express a clear intent 

that the State of Colorado is the exclusive jurisdiction for this litigation. The forum 

selection clause contains no mandatory language like that utilized in the choice of law 

provision, and it does not expressly exclude the possibility that the parties could litigate 

in other jurisdictions. See PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 
17

708 (Tex. App.—Dallas 2011, pet. denied) (“The use of different language in different 

parts of a contract generally means that the parties intended different things.”). 

V. CONCLUSION

The forum selection clause in this case establishes that Colorado will have 

jurisdiction, but does not clearly demonstrate the parties’ intent to make that jurisdiction 

exclusive. See City of New Orleans, Inc., 376 F.3d at 504. Having concluded that the 

forum selection clause is permissive rather than exclusive, we need not consider whether 

or not it is otherwise enforceable by the relators herein. See TEX. R. APP. P. 47.1, 47.4. 

The Court, having examined and fully considered the petitions for writ of mandamus, the 

responses thereto, and the replies, is of the opinion that relators have not met their burden 

to show themselves entitled to the relief sought. Accordingly, the petitions for writ of 

mandamus are DENIED in each of these causes. See TEX. R. APP. P. 52.8(a). 

/s/ Rogelio Valdez

ROGELIO VALDEZ

Chief Justice

Delivered and filed the 

29th day of May, 2014.