IN THE

Indiana Supreme Court

Supreme Court Case No. 18S-PL-584

Daniel O’Bryant, d/b/a 

O’Bryant Transport, LLC,

Appellant,

–v–

Alan P. Adams, Luan Adams, d/b/a 

A.L.A. Trucking, Inc.,

Appellees.

Argued: January 10, 2019 | Decided: June 4, 2019

Appeal from the Madison Circuit Court, No. 48C01-1703-PL-19

The Honorable Angela Warner Sims, Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 48A02-1711-PL-2709

Opinion by Justice Slaughter

Chief Justice Rush and Justices Massa and Goff concur.

Justice David concurs in result.
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Slaughter, Justice.

We hold that a valid forum-selection clause, in which the parties agree 

by contract to litigate their disputes in a specific forum, does not deprive a 

trial court of personal jurisdiction over parties that would otherwise be 

subject to the court’s jurisdiction. Thus, the trial court erred in dismissing 

the plaintiff’s claims against the Indiana-resident defendants under Trial 

Rule 12(B)(2). But we nevertheless affirm the court’s without-prejudice 

dismissal on this record for two reasons. First, the disputed forumselection clause is mandatory and unambiguous in requiring that suit be 

brought in Texas not Indiana. And, second, the plaintiff has not satisfied 

its burden of showing that the clause is invalid. Thus, the trial court was 

correct to dismiss the amended Indiana complaint without prejudice, 

though for a reason other than lack of personal jurisdiction.

Factual and Procedural History

The parties are in the transportation business. O’Bryant Transport, LLC,

and A.L.A. Trucking, Inc., entered into an independent-contractor 

agreement. Under the agreement, A.L.A. Trucking was seeking truckdriving services, and O’Bryant Transport agreed to provide them. Their

agreement contains a forum-selection clause providing that the agreement 

was prepared under Texas law; that the laws of “this state” shall apply; 

and, relevant here, that suit must be brought in “this state”.

This Agreement shall be deemed to have been drawn in 

accordance with the statutes and laws of the State of Texas and 

in the event of any disagreement or litigation, the laws of this 

state shall apply and suit must be brought in this state, except 

that CARRIER [A.L.A. Trucking] may bring suit against 

INDEPENDENT CONTRACTOR [O’Bryant Transport] in any 

state where INDEPENDENT CONTRACTOR resides or is 

located.

More than a year later, the plaintiff, Daniel O’Bryant, alleged breach of 

contract and sued in the Circuit Court of Madison County, Indiana. He 
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claimed that A.L.A. Trucking breached the agreement by treating him, 

apparently a principal of O’Bryant Transport, as an A.L.A. employee 

rather than an independent contractor and did not pay him salary or 

benefits for most of the prior year. We say “apparently” because the 

agreement lists the contracting party as the LLC, a limited-liability 

company, and shows Daniel as signing on its behalf. Yet the amended 

complaint, the operative pleading here, recites Daniel as the aggrieved 

party and lists the LLC as merely a “dba” and not a separate legal entity.

The lower courts did not address Daniel’s standing to sue for breach of an 

agreement to which he is not a party. And neither shall we.

O’Bryant also sued for fraudulent inducement, alleging he was induced 

to sign the agreement by A.L.A.’s “material misrepresentations” 

concerning the work he was to do. The suit named as defendants Alan P. 

Adams and Luan Adams, as “owners”—presumably meaning 

shareholders—of A.L.A. Trucking, Inc. The Adamses are residents of 

Indiana, and A.L.A. Trucking is an Indiana for-profit corporation doing 

business in Indiana. According to O’Bryant, the Adamses are alter egos of 

A.L.A. Trucking, and he seeks to pierce the corporate veil and hold them 

personally liable for any obligations of the corporation. In the lawsuit’s 

caption, O’Bryant lists the counterparty, A.L.A. Trucking, as a “dba”

rather than the separate legal entity his own complaint alleges it to be.

Again, the lower courts ignore this issue, and so shall we.

The defendants moved to dismiss the amended complaint on two 

separate grounds. The first, under Rule 12(B)(2), is that the Indiana trial 

court lacked personal jurisdiction over these defendants because the 

parties agreed to litigate their dispute in Texas. The second ground, under 

Rule 12(B)(6), seeks partial dismissal of the veil-piercing claims against the 

Adamses because the allegations are insufficient to subject them to 

liability for obligations of the corporation. The other 12(B)(6) request is to 

dismiss count 2, the fraud claim, because the plaintiff failed to plead fraud 

with the specificity required by Rule 9(B).

O’Bryant objected to dismissal under Rule 12(B)(2), arguing that the 

phrase “this state” within the forum-selection clause refers not to Texas 

but Indiana; that the clause is ambiguous and permissive; and that 
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requiring Indiana parties to litigate their dispute in Texas is unreasonable

and unjust. The trial court disagreed. It held that the forum-selection 

clause is unambiguous and mandatory; that “this state” refers to Texas; 

and that the clause is enforceable. The court dismissed O’Bryant’s 

amended complaint without prejudice.

O’Bryant then filed a motion to correct error. He argued, among other 

things, that newly discovered evidence, consisting of an affidavit from his 

counsel describing communications with an unidentified Texas lawyer, 

establishes that a Texas court would not enforce the forum-selection 

clause. The trial court denied the motion, and O’Bryant appealed. But his 

notice of appeal identified only the trial court’s original entry as the order 

being appealed and not its later denial of his motion to correct error. The 

court of appeals affirmed the 12(B)(2) dismissal in a precedential opinion.

O’Bryant v. Adams, 108 N.E.3d 933 (Ind. Ct. App. 2018), trans. granted.

Standard of Review

We review de novo the trial court’s dismissal of O’Bryant’s amended 

complaint for lack of personal jurisdiction. LinkAmerica Corp. v. Cox, 857 

N.E.2d 961, 965 (Ind. 2006).

Discussion and Decision

A. The forum-selection clause is mandatory and 

unambiguous.

Parties to a contract are generally free to bargain for the terms that will 

govern their relationship. They can decide, among other things, what law

will govern; whether disputes arising between them will be resolved 

publicly (in a court of law) or privately (in arbitration); and where any 

disputes will be resolved. At issue here is the last category—where 

O’Bryant Transport must assert its claims against A.L.A. Trucking.

The parties’ agreement contains a forum-selection clause, which 

provides in pertinent part: “This Agreement shall be deemed to have been 
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drawn in accordance with the statutes and laws of the State of Texas and 

in the event of any disagreement or litigation, the laws of this state shall 

apply and suit must be brought in this state[.]” This case turns on the 

meaning of “suit must be brought in this state”. The phrase “must be 

brought” is mandatory. It requires O’Bryant to bring suit, if at all, in the 

specified forum.

The forum specified in the agreement—“this state”—refers 

unambiguously to Texas. Texas is the only state mentioned within that 

sentence and, indeed, within the entire paragraph. There is no other 

plausible reading of this term. We are not swayed by O’Bryant’s contrary 

argument that “this state” must mean Indiana because that is where the

parties executed the agreement. If the parties had intended Indiana to be a 

forum where O’Bryant Transport could file suit, they could have recited 

that intention expressly. Indeed, the identification of “Indiana” in the final 

paragraph shows the parties know how to refer to Indiana when they 

want to. They did so specifically in the closing paragraph but not in the

paragraph containing the forum-selection clause. The clear take-away is 

that the parties intended to identify Indiana as the state where they were 

executing their agreement but not the state where they agreed O’Bryant 

must sue to enforce it.

We thus agree with the court of appeals’ resolution of this issue, though 

for a different reason. The court held that “this state” means Texas 

because the interpretive canon ejusdem generis—“of the same kind”—

compels that result. 108 N.E.3d at 939. There are two issues worth 

mentioning with the court’s approach. First, courts need not resort to 

interpretive canons at all when a word or phrase is unambiguous. In such 

circumstances, we simply apply the text’s plain meaning. Once the court 

of appeals concluded (correctly) that “this state” unambiguously means 

Texas, it was unnecessary to invoke this or any other interpretative canon.

Second, the ejusdem generis canon does not apply here for another 

reason. The canon applies only when a list of more than one item within 

an enumeration is followed by a catch-all phrase at the end. The meaning 

of the catch-all phrase turns on the nature of the items within the 

enumerated list. Scalia and Garner explain the canon this way: “Where 
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general words follow an enumeration of two or more things, they apply 

only to persons or things of the same general kind or class specifically 

mentioned[.]” Antonin Scalia and Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 199 (2012).

Suppose, for example, an invitation to a party says the menu will 

consist of “hamburgers, hot dogs, and other like food.” Under common 

usage, we expect “other like food” to be defined with reference to the 

foods listed. Hamburgers and hot dogs are casual foods, inexpensive, and

easy to prepare. Because they “all belong to an obvious and readily 

identifiable genus”, we expect that “the speaker or writer has that 

category in mind for the entire passage.” Id. Given the invitation’s list of 

specified foods, it would come as little surprise if the host also served 

baked beans and potato salad. But no one would expect the menu to 

include lobster thermidor or pheasant under glass.

Here, the disputed contract contains no antecedent list of other items to 

which the reader can refer to interpret the meaning of “this state”. Just as 

it takes two points to determine a line in geometry, it takes at least two 

items within a list to establish a pattern from which a generic catch-all 

phrase at the end of the list can be interpreted under the ejusdem generis

canon. Stated differently, the canon applies only to the following format—

“A, B, [C, etc.] and other like items”—which is not present here.

B. The forum-selection clause is valid and enforceable.

Indiana puts a premium on parties’ freedom of contract, and we 

presume that contracts represent the parties’ freely bargained agreements.

Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937 (Ind. 2012). Especially 

where the contracting parties are commercial entities, the party resisting a 

forum-selection clause bears an especially onerous burden of showing it 

was neither “freely negotiated” nor “reasonable and just”, which is what 

Indiana law requires for such clauses to be enforced. Carmeuse Lime & 

Stone v. Illini State Trucking, Inc., 986 N.E.2d 271, 276, 277 (Ind. Ct. App. 

2013).
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O’Bryant’s transfer petition argues that the forum-selection clause

deprives him of a meaningful forum for vindicating his claims. “Plaintiff 

simply has no legal remedy in the State of Texas and that is shown by the 

affidavit submitted by plaintiff’s counsel”—which avers that an 

unidentified Texas lawyer told O’Bryant that Texas courts would not 

afford him a remedy because neither party “maintained an operational

business in that state and therefore, the State of Texas would not accept 

personal jurisdiction over the parties to any law suit.”

This argument fails for several reasons. First, it is waived. O’Bryant 

raised this argument in a motion to correct error filed after the trial court 

had dismissed his amended complaint, and he failed to establish this 

argument was unavailable during the original proceedings. Moreover, 

once the trial court denied his motion to correct error, O’Bryant did not 

appeal that order. His notice of appeal recites that he was appealing only 

the initial entry dismissing his amended complaint under Rule 12(B)(2)

but not the subsequent order denying his motion to correct error. His 

failure to appeal the latter order also waives this issue on appeal.

Apart from waiver, the argument is meritless. It would have been 

reversible error had the trial court afforded O’Bryant relief from the 

forum-selection clause based on the thin content of his lawyer’s 

affidavit—not just the hearsay statement of the unnamed Texas lawyer 

but the dubious legal conclusion that Texas would “not accept personal 

jurisdiction over the[se] parties” because they did not “maintain[] an 

operational business” there. O’Bryant cites no Texas authority supporting 

that proposition. And we have identified none. To the contrary, the law of 

Texas (and of most states) permits parties to consent to personal 

jurisdiction by contractually agreeing to litigate their disputes there. See 

Abacan Tech. Servs. Ltd. v. Glob. Marine Int'l Servs. Corp., 994 S.W.2d 839, 

845 (Tex. Ct. App. 1999) (cited favorably by In re AIU Ins. Co., 148 S.W.3d 

109, 112 n.5 (Tex. 2004)).

On this record, O’Bryant did not satisfy his burden of establishing that 

the forum-selection clause was invalid.
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C. The validity of the forum-selection clause does not 

divest the Indiana trial court of personal jurisdiction 

over these Indiana parties.

Given our conclusion that the forum-selection clause is valid, 

unambiguous, and mandatory in requiring that O’Bryant file suit in Texas, 

we turn next to consider the appropriate remedy for his having sued in 

Indiana. A.L.A. Transport and the trial court understandably relied on 

settled, controlling precedent from our court of appeals in seeking and 

granting, respectively, the dismissal of O’Bryant’s amended complaint 

under Trial Rule 12(B)(2). See, e.g., Dexter Axle Co. v. Baan USA, Inc., 833 

N.E.2d 43, 48 (Ind. Ct. App. 2005); Grott v. Jim Barna Log Sys.-Midwest, Inc., 

794 N.E.2d 1098, 1101-02 (Ind. Ct. App. 2003), trans. denied. But neither 

Dexter Axle, Grott, nor the appellate opinion below analyzed an Indiana 

court’s personal jurisdiction over parties that agreed to sue elsewhere. 

Instead, these decisions assessed whether the disputed forum-selection 

clauses were enforceable and concluded they were.

We hold that a valid forum-selection clause does not divest a trial court 

of personal jurisdiction over parties otherwise subject to the court’s 

jurisdiction. Parties are free to consent to having their disputes litigated in 

a forum in which they would not otherwise be amenable to suit. And 

when they elect to do so, as here, they submit to the personal jurisdiction 

of the distant forum. But by consenting to personal jurisdiction in a 

different forum, they do not thereby deprive other jurisdictions—such as 

those where they live and do business—of personal jurisdiction, too. 

Personal jurisdiction is not a zero-sum game in which agreeing to personal 

jurisdiction elsewhere divests jurisdiction at home. Thus, the parties’ 

consent to suit in Texas did not deprive the court below of personal 

jurisdiction. The parties, all residents of Indiana or companies doing 

business here, remain subject to the jurisdiction of an Indiana tribunal. 

The trial court thus erred in dismissing O’Bryant’s amended complaint 

under Rule 12(B)(2). We specifically disapprove of Dexter Axle and Grott to 

the extent they authorize a 12(B)(2) dismissal whenever parties have 

agreed to litigate their disputes in a different forum.
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As an aside, we note that a dismissal for lack of personal jurisdiction 

does not adjudicate the merits but merely requires that the merits be 

litigated elsewhere—in a forum in which the parties are amenable to suit. 

Here, the defendants sought dismissal of the amended complaint “with 

prejudice”—a proposed merits disposition that can have preclusive effect 

in other litigation. Given the posture of this case and the trial court’s 

dismissal without prejudice, we do not decide whether a defendant 

waives an objection to personal jurisdiction by seeking a dismissal with 

prejudice. We leave that issue for another day. 

D. We recognize an alternative motion for enforcing a 

forum-selection clause.

Finally, having concluded that 12(B)(2) is not the correct vehicle for 

enforcing a forum-selection clause, we recognize an alternative for 

obtaining that relief.

One option is for the defendant to file a stand-alone motion to enforce a 

forum-selection clause, arguing the parties’ written agreement requires 

their dispute to be litigated elsewhere. See generally Bradley Scott 

Shannon, Enforcing Forum-Selection Clauses, 66 Hastings L.J. 777 (2015). The 

motion should recite the clause within the motion’s four corners or attach

it as a separate document if it is not part of the complaint. Unless the 

plaintiff contests the clause’s enforceability, the court can interpret the 

clause and dismiss the complaint without prejudice if the plaintiff sued in 

an unauthorized forum. If the plaintiff contests the clause’s validity—

alleging it to be, say, unfair or the product of unequal bargaining power—

the court may need to hold a mini-trial to resolve factual disputes on the 

threshold question of the clause’s enforceability. Such a limited trial is 

necessarily antecedent to deciding what the clause means and whether 

dismissal is required to effectuate its meaning. Courts must occasionally 

resolve factual disputes before deciding threshold questions of subjectmatter or personal jurisdiction. The same is true of facts underlying the 

validity of a forum-selection clause. And, as a belt-and-suspenders 

measure, a defendant wanting to protect itself from costly collateral 

litigation over the validity of a presumptively valid forum-selection clause 
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can include in its contract a requirement that the breaching party pay the 

costs and attorney’s fees the aggrieved party incurs to enforce the clause.

By recognizing this procedural vehicle, we do not foreclose other 

possible options for enforcing a forum-selection clause against a litigant 

that sued in an unapproved forum. Once our opinion is certified, we will 

ask our rules committee to consider various options for amending our 

rules of trial procedure to formalize a process for enforcing forumselection clauses.

Conclusion

For these reasons, we affirm the trial court’s dismissal of the amended 

complaint without prejudice. Although the court erred in basing its 

dismissal on lack of personal jurisdiction, dismissal was nevertheless 

warranted on this record. The disputed forum-selection clause is 

mandatory and unambiguous in requiring that suit be brought in Texas. 

And the plaintiff did not satisfy its burden of showing that the clause is 

invalid and thus unenforceable.

Rush, C.J., and Massa and Goff, JJ., concur.

David, J., concurs in result.

ATTORNEY FOR APPELLA N T

Scott A. Norrick

Scott A. Norrick, P.C.

Anderson, Indiana

A TTORNEY FOR APPELLEES

Andrew F. Marquis

Scopelitis Garvin Light Hanson & Feary, P.C.

Indianapolis, Indiana