Petition for Writ of Mandamus Conditionally Granted and Memorandum 

Opinion filed August 23, 2022.

In The

Fourteenth Court of Appeals

NO. 14-21-00399-CV

IN RE MVP TERMINALLING, LLC, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

125th District Court

Harris County, Texas

Trial Court Cause No. 2020-68933

MEMORANDUM OPINION

On July 19, 2021, relator MVP Terminalling, LLC filed a petition for writ of 

mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. 

P. 52. In the petition, MVP asks this court to compel the Honorable Kyle Carter, 

presiding judge of the 125th District Court of Harris County, to (1) vacate his March 

11, 2021 order denying MVP’s plea in abatement and his July 14, 2021 order 

denying MVP’s motion for clarification and reconsideration on its plea in abatement 
2

and motion to stay; and (2) sign an order dismissing or abating the underlying suit. 

We grant the requested relief. 

BACKGROUND

MVP, a joint venture between Magellan Midstream Partners, L.P. and an 

affiliate of Valero Energy Corporation, is a refined-products terminalling company 

and the owner and operator of a marine terminal located along the Houston Ship 

Channel. McCarthy Building Companies, Inc. is a construction company. On April 

23, 2018, MVP and McCarthy entered into the Major Construction Contract 

(“MCC”), under which McCarthy agreed to furnish construction and related services 

for MVP’s Pasadena Terminal Phase 2 Project (the “Project”) on the Houston Ship 

Channel. The Project included constructing new docks and dredging the basin of 

the new marine terminal to allow refinery tankers and other large vessels to dock at 

the terminal. 

MVP retained Terracon Consultants, Inc. to perform a geotechnical analysis 

of the subsurface conditions at the Project and prepare a geotechnical engineering 

report documenting the Project’s subsurface conditions for Phase 1 of the Project. 

The Phase 1 report was not updated for Phase 2. MVP gave the Phase 1 report to 

contractors, including RLB Contracting, Inc., to use and rely on in preparing bids 

for Phase 2. On May 23, 2018, McCarthy entered into a subcontract (the 

“Subcontract”) with RLB for dredging work for the Project. 

In August 2018, RLB started its dredging work under the Subcontract. When 

RLB reached minus 38 feet below sea level, it encountered substantially harder 

material. RLB began to have equipment problems and difficulty excavating the 

harder material. RLB believed that the subsurface condition it had encountered 

varied greatly from the information provided by MVP and McCarthy in the Phase 1 
3

report. On July 22, 2019, RLB advised McCarthy that it had encountered a differing 

site condition as defined in the MCC and the Subcontract, entitling RLB to change 

orders for additional time and compensation. 

RLB subsequently gave McCarthy formal notice of its claim for differing site 

conditions and a request for a change order. Because the Subcontract contained a 

“pass-through” provision, which provided that RLB would not be entitled to a 

change order unless McCarthy was entitled to the relief from MVP under the MCC, 

RLB also requested that McCarthy seek a similar change order from MVP. After 

McCarthy advised RLB that it was required to continue its work during the dispute 

and McCarthy would take action to achieve completion, RLB retained its own 

geotechnical engineer, which found that the material RLB encountered at minus 

38-foot elevation was substantially different than the subsurface conditions 

represented in the Phase 1 report. On August 10, 2019, MVP denied the request for 

a change order. 

On November 21, 2019, RLB gave notice of completion of its work and 

submitted an internally prepared calculation of its differing site condition claim. 

RLB also filed a mechanic’s lien affidavit in the amount of $4,540,743.88 in Harris 

County to secure additional costs. In December 2019, McCarthy as principal, and 

Travelers Casualty and Surety Company, as surety, issued a bond to indemnify 

against and discharge the lien.

In September 2020, after RLB and McCarthy had issued multiple reports 

regarding the issue of the differing site conditions, MVP again denied RLB’s claim 

based on McCarthy’s denial of the existence of a differing site condition, denial of 

liability for RLB’s claim, and purported failure to pursue timely RLB’s pass-through 

claim.
4

On October 22, 2020, MVP sued McCarthy in the District Court for Tulsa 

County, Oklahoma, pursuant to a forum-selection clause in the MCC, asserting, 

among other claims, that McCarthy is liable for RLB’s additional costs. Five days 

later, RLB filed its original petition, in Harris County, against MVP, alleging MVP 

is liable for RLB’s additional costs. RLB amended its petition in the Texas case by 

adding McCarthy and Travelers as defendants on October 30, 2022. 

McCarthy sent notice to MVP on November 4, 2020, that it was voiding the 

forum-selection clause. On November 17, 2020, McCarthy filed an original 

crossclaim in the Texas case against MVP for, among other claims, breach of 

contract based on MVP’s failure to pay the additional costs. McCarthy also filed an 

original counterclaim against RLB in the Texas case, alleging causes of action 

related to RLB’s claim for additional costs. 

Two days later, McCarthy filed a motion to dismiss in the Oklahoma case, 

arguing that (1) the forum-selection clause in the MCC is voidable under the Texas 

“home-rule” statute found in section 272.001 of the Business and Commerce Code;

1

and (2) the case should further be dismissed under the doctrine of forum non 

conveniens. 

On December 22, 2020, MVP filed a plea in abatement in the Texas case. 

MVP contended that RLB’s and McCarthy’s claims against MVP in the Texas case

should be abated in favor of the Oklahoma case because (1) the Oklahoma court had 

dominant jurisdiction because the Oklahoma case was the first-filed; and (2) the 

forum-selection clause in the MCC required that suit be filed in the District Court in 

Tulsa, Oklahoma.

1

See Tex. Bus. & Com Code Ann. § 272.001. 
5

On January 14, 2021, the Oklahoma court denied McCarthy’s motion to 

dismiss and ordered McCarthy to answer the lawsuit; McCarthy answered the 

Oklahoma case and asserted counterclaims against MVP on January 29, 2021. 

Also, on January 14, 2021, MVP advised the trial court that the Oklahoma 

court had denied McCarthy’s motion to dismiss. McCarthy and RLB each filed a 

response to MVP’s plea in abatement, contending that the forum-selection clause is 

voidable under section 272.001, they had voided the forum-selection clause, and 

principles of comity did not require abatement of the Texas case.

On March 11, 2021, the trial court signed the order denying MVP’s plea in 

abatement. MVP filed a motion for clarification and reconsideration. MVP asked 

the trial court to dismiss the Texas case based on RLB’s and McCarthy’s waiver of 

the right to object to the forum-selection clause, or alternatively abate the Texas case

until entry of the final judgment in the Oklahoma case. MVP also filed a motion to 

stay, in which it advised the trial court that it intended to seek mandamus relief in 

the court of appeals and asked the trial court to stay the trial court proceedings until 

the appellate court had ruled on MVP’s mandamus petition.2 The trial court held a 

hearing on April 23, 2021, and signed the order denying MVP’s motions on July 14, 

2021. 

MVP brings this mandamus proceeding, asking this court to compel the trial 

court to vacate its March 11, 2021 order denying MVP’s plea in abatement and its 

July 14, 2021 order denying MVP’s motion for clarification and reconsideration on 

its plea in abatement, and to sign an order dismissing or abating the underlying suit.

2 MVP did not file a motion for temporary relief in this court requesting a stay of the 

proceedings in the trial court pending disposition of its petition for writ of mandamus.
6

STANDARD OF REVIEW

To obtain mandamus relief, a relator generally must show both that the trial 

court clearly abused its discretion and that the relator has no adequate remedy by 

appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (orig. proceeding) (per 

curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135‒36 (Tex. 2004) (orig. 

proceeding). A trial court clearly abuses its discretion if it reaches a decision so 

arbitrary and unreasonable as to amount 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 H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302‒03 (Tex. 2016) (orig. proceeding) 

(per curiam); In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) 

(orig. proceeding) (per curiam). 

Courts are to assess the adequacy of an appellate remedy 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 balancing depends in 

large measure on the circumstances presented, courts look to principles rather than 

simple rules that treat cases as categories. In re McAllen Med. Ctr., Inc., 275 S.W.3d 

458, 464 (Tex. 2008) (orig. proceeding). Whether an appeal amounts to an adequate 

remedy depends heavily on the circumstances. In re Garza, 544 S.W.3d 836, 840 

(Tex. 2018) (orig. proceeding) (per curiam). Mandamus relief is available to enforce 

forum-selection clauses. In re AutoNation, 228 S.W.3d 663, 667 (Tex. 2007) (orig. 

proceeding). 

ANALYSIS

MVP sued McCarthy in District Court in Tulsa, Oklahoma pursuant to the 

forum-selection clause in the MCC. The forum-selection clause is found in 

paragraph 47.7 of the MCC and reads as follows:
7

47.7 The parties acknowledge and agree that this contract has been 

made in Oklahoma, and that it shall be governed by, construed, 

interpreted and enforced in accordance with the laws of the State of 

Oklahoma, without reference to its conflicts of law principles. The 

parties also acknowledge and agree that any action or proceeding 

arising out of or relating to this contract or the enforcement thereof shall 

be solely brought in the Tulsa County District Court or the Northern 

District Federal Court located in Tulsa, Oklahoma, and each of the 

parties irrevocably submits to the exclusive jurisdiction of that court in 

any such action or proceeding, waives any objection the party may nor 

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

claims in respect of such action or proceeding shall be heard and 

determined only in that court, and agrees not to bring any action or 

proceeding arising out of or relating to this contract or the enforcement 

hereof in any other court. The parties also acknowledge and agree that 

either or both of them may file a copy of this paragraph with any court 

as written evidence of the knowing, voluntary and bargained agreement 

between the parties irrevocably waiving any objections to venue or 

convenience of forum, or to personal or subject matter jurisdiction.

3

The Subcontract contains the following “flow-down” provisions, under which 

MVP asserts that RLB agreed to be bound by forum-selection clause of the MCC:

1.2 Subcontractor binds itself to McCarthy in performing its obligations 

hereunder to all terms and conditions of the Contract Documents, 

including, but not limited to, McCarthy’s Contract with the Owner. 

McCarthy’s Contract with the Owner (hereinafter “Owner Contract”), 

excluding financial data, and all other Contract Documents listed in 

Exhibit 2 will be made available to Subcontractor upon Subcontractor’s 

written request. In the case of conflict between this Agreement and the 

other Contract Documents, Subcontractor shall be bound by the more 

stringent requirement as determined by McCarthy. If the Owner 

Contract has not been finalized with the Owner, McCarthy reserves the 

right to modify this Agreement based upon the finalized Owner 

Contract and Subcontractor consents to such modifications and agrees 

to be bound to the finalized Owner Contract.

3 Modified text from all capital letters.
8

* * *

11.1 This Agreement shall be governed by the law in effect in the place 

of the Project. Venue for any legal action hereunder shall be in either 

the place of the Project or the place of McCarthy set forth in Page 1 

hereof; or for disputes involving the Owner described in Paragraph 11.2 

herein, venue shall be in the place set forth in the Owner Contract.

11.2 Any claim, dispute or controversy arising out of or relating to 

disputes involving the Owner (at the inception of the claim, dispute or 

controversy, or subsequently) shall be resolved pursuant to the claims 

and dispute resolution procedures set forth in the Owner Contract. The 

determination as to whether a claim, dispute or controversy arises from 

or relates to disputes involving the Owner shall be made by McCarthy 

at McCarthy’s sole discretion. . . .

McCarthy and RLB both argue that, pursuant to section 272.001, they voided 

any potential applicability of the forum-selection clause. MVP asserts that neither 

McCarthy nor RLB established that section 272.001 applies to void the 

forum-selection clause in the MCC. Section 272.001 provides the following:

(a) This section applies only to a construction contract concerning real 

property located in this state. 

(b) If a construction contract or an agreement collateral to or affecting 

the construction contract contains a provision making the contract or 

agreement or any conflict arising under the contract or agreement 

subject to another state’s law, litigation in the courts of another state, or 

arbitration in another state, that provision is voidable by a party 

obligated by the contract or agreement to perform the work that is the 

subject of the construction contract.

Tex. Bus. & Com. Code § 272.001. Section 272.01 applies “only to a construction 

contract concerning real property located in this state.” Id. § 272.001(a). If the 

section applies, a forum-selection clause making any conflict arising under the 

contract subject to litigation in the courts of another state “voidable by the party 
9

obligated by the contract or agreement to perform the work that is the subject of the 

construction contract.” Id. § 272.001(b). 

MVP asserts that McCarthy and RLB irrevocably waived all “objections” to 

the forum-selection clause, including on the basis of section 272.001. Although 

McCarthy and RLB both argue that they have not waived their right to void the 

forum selection clause under section 272.001, each has different arguments, which 

we address below.

In its response to MVP’s mandamus petition, RLB contends that the 

forum-selection clause in the MCC does not apply to RLB as a non-signatory to the 

MCC or to RLB’s claims against MVP. More specifically, RLB argues that the 

MCC’s forum-selection clause was not incorporated into the Subcontract through 

the flow-down provision. RLB has waived these arguments by not raising them in 

the trial court in response to MVP’s plea in abatement. Instead, RLB asserted that 

it had voided the forum-selection clause under section 272.001 and the doctrine of 

comity is not applicable here. We need not address RLB’s newly raised argument

that the forum-selection clause was not incorporated into the Subcontract through 

the flow-down provision. See In re Cornerstone Healthcare Holding Grp., Inc., 348 

S.W.3d 538, 542 (Tex. App.—Dallas 2011, orig. proceeding) (refusing to address 

real party in interest’s arguments in mandamus proceeding because it did not 

challenge relator’s right to enforce forum-selection clause in the trial court in 

response to relator’s motion to dismiss); see also In re MHI P’ship, Ltd., No.

14-07-00851-CV, 2008 WL 2262157, at *8 (Tex. App.—Houston [14th Dist.] May 

29, 2008, orig. proceeding) (mem. op.) (refusing to address real party in interest’s 

arguments in mandamus proceeding because they did not raise arguments in trial 
10

court in response to motion to compel arbitration). Therefore, we assume that the 

forum-selection clause in the MCC applies to the Subcontract.

RLB further maintains there was no contractual waiver of its section 272.001 

right to void the forum-selection clause. RLB contends that the express language 

and public policy underlying section 272.001 make it “apparent on its face” that a 

waiver of the section 272.001 right is not enforceable. According to RLB, under 

MVP’s position, “countless owners would include such waivers in their construction 

contracts and would require subcontractors, like RLB, to sign them as a condition 

precedent to being awarded any work on Texas projects,” which would undermine 

the Legislature’s purpose behind section 272.001. 

In construing a statute, the court’s objective is to determine and give effect to 

the Legislature’s intent. Energen Res. Corp. v. Wallace, 642 S.W.3d 502, 509 (Tex. 

2022). The court relies on the plain meaning of the text as expressing legislative 

intent unless a different meaning is supplied by legislative definition or is apparent 

from the context, or the plain meaning leads to absurd results. Fort Worth Transp. 

Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018). “Ordinarily, the truest 

manifestation of what legislators intended is what lawmakers enacted, the literal text 

they voted on.” Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 642 S.W.3d 551, 

557 (Tex. 2022) (internal quotations marks & citations omitted). We presume the 

Legislature selected language in a statute with care and that every word or phrase 

was used with a purpose in mind. Tex. Lottery Comm’n v. First State Bank of 

DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); see also Silguero v. CSL Plasma, Inc., 

579 S.W.3d 53, 59 (Tex. 2019) (explaining that, if statute’s plain language is 

unambiguous, court interprets its plain meaning, presuming that the Legislature 

intended for each of word in statute to have purpose and that the Legislature 
11

purposefully omitted words it did not include). The court may not impose its own 

judicial meaning on a statute by adding words not contained in the statute’s 

language. Silguero, 579 S.W.3d at 59.

Section 272.001 makes the forum-selection clauses in construction contracts 

“voidable.” See Tex. Bus. & Com. Code § 272.001(b). RLB cites to statutes from 

other states that make forum-selection and choice-of-law clauses in construction 

contracts void and unenforceable in support of its position that the Texas Legislature 

intended for section 272.001 to be non-waivable. RLB’s reliance on these other 

statutes is misplaced because those statutes expressly deem forum-selection and 

choice-of-law clauses in construction contracts as “against public policy” and/or 

“void” and/or “unenforceable” rather than merely “voidable.”

4

The distinction between a void contract and a voidable contract is significant. 

Cole v. Willie, 464 S.W.3d 896, 899 (Tex. App.—Eastland 2015, pet. denied). The 

distinction is important because a void contract is a nullity from its inception, while 

a voidable contract continues in effect until repudiated. Estate of Riefler, 540 

S.W.3d 626, 632 (Tex. App.—Amarillo 2017, no pet.); see also Wood v. HSBC Bank 

USA, N.A., 505 S.W.3d 542, 547 (Tex. 2016) (explaining that “a void act is one 

which is entirely null, not binding on either party, and not susceptible of ratification,” 

and “a voidable act is one which is obligatory upon others until disaffirmed by the 

party with whom it originated and which may be subsequently ratified or 

confirmed”) (internal quotation marks & citations omitted). Voidable means that a 

4

See Conn. Gen. Stat. § 42-158m; Fla. Stat. Ann. Ch. 47.025; 815 Ill. Comp. Stat. Ann. 

665/10; Ind. Code § 32-28-3-17; Minn. Stat. § 337.10(1); Mont. Code Ann. § 28-2-2116(1); Neb. 

Rev. Stat. § 45-1209(2), (3); Nev. Rev. Stat. Ann. § 108.2453(2)(c), (d); N.M. Stat. Ann. § 57-

28A-1(A)(1), (2); N.Y. Gen. Bus. Law § 757; Ohio Rev. Code Ann. § 4113.62(D)(1), (2); Okla. 

Stat. Ann. Tit. 15, § 15-821(B)(1); Or. Rev. Stat. § 701.640; Pa. Stat. Ann. tit. 73 § 514; Tenn. 

Code Ann. § 66-11-208(a); Va. Code Ann. § 8.01-262.1; Wis. Stat. Ann. § 779.135(2).
12

contract is valid and effective unless and until the party entitled to avoid it takes 

affirmative steps to disaffirm it. Neese v. Lyon, 479 S.W.3d 368, 378 (Tex. App.—

Dallas 2015, no pet.). Therefore, under section 272.001, a forum-selection clause is 

valid until a party obligated under the contract exercises its right to void the 

provision. 

RLB contends that the Legislature indicated its intent to grant a non-waivable 

right by making forum-selection clauses in construction contracts requiring litigation 

in another forum voidable and that contractual waiver of the right to void such 

clauses would be against Texas public policy. RLB relies on legislative analysis on 

section 272.001 observing that Texas has “provided protection for general 

contractors and subcontractors who contract with entities from other states” and that 

“projects constructed in Texas will be decided in Texas, under Texas law.” Senate 

Res. Ctr., Bill Analysis, Tex. S. B. 807, 85th Leg. R.S. (April 18, 2017). Generally, 

however, we do not resort to extrinsic aids, such as legislative history, to interpret a 

clear and unambiguous statute because the statute’s plain language is the surest guide 

to the Legislature’s intent. See Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 

2016). In any event, we do not dispute that the Legislature intended to protect 

contractors. But insofar as forum-selection clauses are concerned, the Legislature 

clearly did not intend to void them in all construction contracts or prohibit 

contractual waivers of the right to void them. 

Texas has a strong public policy favoring freedom of contract. James Constr. 

Grp., LLC v. Westlake Chem. Corp., No. 20-0079, 2022 WL 1594955, at *7 (Tex. 

May 20, 2022); see also Chalker Energy Partners III, LLC v. Le Norman Operating, 

LLC, 595 S.W.3d 668, 673 (Tex. 2020) (“Texas’s strong public policy favoring

freedom of contract is firmly embedded in our jurisprudence.”) (internal quotation 
13

marks and citation omitted). “As a rule, parties have the right to contract as they see 

fit as long as their agreement does not violate the law or public policy.” Fairfield 

Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 664 (Tex. 2008) (internal 

quotation marks and citation omitted). The Legislature determines public policy 

through the statutes it passes. Id. at 665. 

Absent compelling reasons, courts must respect and enforce the terms of a 

contract the parties have freely and voluntarily entered. Philadelphia Indem. Ins. 

Co. v. White, 490 S.W.3d 468, 471 (Tex. 2016); see also Gym-N-I Playgrounds, Inc. 

v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) (“Freedom of contract allows parties to 

bargain for mutually agreeable terms and allocate risks as they see fit.”); St. Louis 

Sw. Ry. Co. of Tex. v. Griffin, 171 S.W. 703, 704 (Tex. 1914) (“The citizen has the 

liberty of contract as a natural right which is beyond the power of the government to 

take from him. The liberty to make contracts includes the corresponding right to 

refuse to accept a contract or to assume such liability as may be proposed.”). 

It is exactly the fact that the Legislature chose to make forum-selection clauses 

in construction contracts “voidable” rather than “against public policy,” “void,” or 

“unenforceable,” which supports the Legislature’s intent that the right to void such 

clauses can be contractually waived. We now turn to McCarthy’s argument that it 

did not waive its right to void the forum-selection clause under the MCC.

McCarthy does not dispute that constitutional and statutory rights may be 

waived. Indeed, McCarthy acknowledges that it “waive[d] any objection . . . to 

venue or to convenience of forum” in paragraph 47.7 of the MCC, but maintains that 

it did not waive its right to void the forum-selection clause under section 272.001. 

The interpretation of an unambiguous contract is a question of law for the 

court. Farmers Grp., Inc. v. Geter, 620 S.W.3d 702, 709 (Tex. 2021). If a contract 
14

has a certain and definite meaning, the contract is unambiguous, and we will construe 

it as a matter of law. Nettye Engler Energy, LP v. BlueStone Nat. Res. II, LLC, 639 

S.W.3d 682, 690 (Tex. 2022). The fact that parties may advance different 

interpretations of a contract does not make the contract ambiguous. Id. 

When construing a contract, the court’s primary concern is to give effect to 

the written expression of the parties’ intent. Sundown Energy LP v. HJSA No. 3, 

Ltd. P’ship, 622 S.W.3d 884, 888 (Tex. 2021) (per curiam); ConocoPhillips Co. v. 

Koopmann, 547 S.W.3d 858, 874 (Tex. 2018). The court generally gives terms their 

plain, ordinary, and generally accepted meaning unless the contract shows that the 

parties used them in a technical or different sense. Farmers Grp., Inc., 620 S.W.3d 

709. The court must examine and consider the entire writing in effort to harmonize 

all provisions in a contract so that none will be rendered meaningless. Nettye Engler 

Energy, LP, 639 S.W.3d at 690; Sundown Energy LP, 622 S.W.3d at 888. The court 

must construe words within the contractual context as a whole, not in isolation. 

Northland Indus., Inc. v. Kouba, 620 S.W.3d 411, 415 (Tex. 2020). 

McCarthy’s position would render other portions of the paragraph 47.7 in the 

MCC meaningless. McCarthy admits that it waived any “objection” to venue or 

convenience of forum. Significantly, however, McCarthy “irrevocably submit[ted] 

to the exclusive jurisdiction” of the Tulsa County District Court or the Northern 

District Federal Court located in Tulsa, Oklahoma; “agree[d] that all claims in 

respect of such action or proceeding shall be heard and determined only in” the Tulsa 

County District Court or the Northern District Federal Court located in Tulsa, 

Oklahoma; and “agree[d] not to bring any action or proceeding arising out of or 

relating to this contract or the enforcement hereof in any other court.” 
15

It is not inconsistent for McCarthy to have waived any objection to venue or 

convenience of forum while also agreeing that claims arising out of or relating to the 

MCC be brought in the Tulsa County District Court or the Northern District Federal 

Court located in Tulsa, Oklahoma. We must harmonize all provisions in paragraph 

47.7 of the MCC so that none will be rendered meaningless. See Nettye Engler 

Energy, LP, 639 S.W.3d at 690; Sundown Energy LP, 622 S.W.3d at 888. Moreover, 

we cannot rewrite a contract or add to its language under the guise of interpreting it. 

Abdullatif v. Choudhri, 561 S.W.3d 590, 602 (Tex. App.—Houston [14th Dist.] 

2009, pet. denied). McCarthy bargained freely to waive its section 272.001-right to 

void the forum-selection clause in the MCC. 

As addressed above, RLB waived any argument that the MCC’s 

forum-selection clause was not incorporated into the Subcontract through the flowdown provision. Having concluded that McCarthy contractually waived the right to 

void the forum-selection clause in the MCC and applying the same analysis, we also 

conclude RLB similarly waived the right to void the forum-selection clause through 

the Subcontract’s flow-down provision.5

We conclude that RLB and McCarthy contractually waived their respective 

rights under section 272.001 to void the forum-selection clause and the trial court 

abused its discretion in concluding otherwise. We must now determine whether 

MVP has an adequate remedy by appeal. 

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.” Deep 

Water Slender Wells, Ltd. v. Shell Int’l Expl. & Prod., Inc., 234 S.W.3d 679, 687 

5 Given our disposition on contractual waiver, we need not address whether comity 

required the trial court to abate or dismiss the Texas case in favor of the first-filed Oklahoma case.
16

(Tex. App.—Houston [14th Dist.] 2007, pet. denied). MVP did not file a motion to 

dismiss based on the forum-selection clause or request dismissal of RLB’s and 

McCarthy’s claims in the Texas case. Instead, MVP filed a plea in abatement 

specifically requesting that the trial court abate RLB’s and McCarthy’s claims 

against MVP in the Texas case based on the forum-selection clause until the 

Oklahoma case has been resolved. However, MVP requested that the trial court 

dismiss the Texas case in its motion for clarification and reconsideration of its plea 

in abatement. “[W]e look to the substance of a motion to determine the relief sought, 

not merely its title.” Surgitek, Bristol Myers Corp. v. Abel, 997 S.W.2d 598, 601 

(Tex. 1999).

MVP sought the enforcement of the forum-selection clause and asked that the 

Texas case be dismissed. Mandamus relief is available to enforce forum-selection 

agreements because there is no adequate remedy by appeal when a trial court abuses 

its discretion by refusing to enforce a valid forum-selection clause that covers the 

dispute. In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 674 (Tex. 2009) (orig. 

proceeding) (per curiam). Therefore, MVP lacks an adequate remedy by appeal and

is entitled to having the Texas case dismissed. 

CONCLUSION

Having determined that the trial court abused its discretion and MVP does not 

have an adequate remedy by appeal, we grant MVP’s requested relief. We direct the 

trial court to (1) issue a written order vacating its March 11, 2021 order denying 

MVP’s plea in abatement and its July 14, 2021 order denying MVP’s motion for 

clarification and reconsideration on its plea in abatement and motion to stay and

(2) issue an order dismissing the Texas case. We are confident the trial court will 
17

act in accordance with this opinion and the writ will issue only if the court fails to 

do so. 

PER CURIAM

Panel consists of Justices Wise, Jewell, and Spain.