CONDITIONALLY GRANT; and Opinion Filed August 4, 2017.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-16-01443-CV

IN RE BRUNO KÜBLER, IN HIS CAPACITY AS INSOLVENCY ADMINISTRATOR 

OF THIELERT AIRCRAFT ENGINES GMBH, Relator

Original Proceeding from the 191st Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-14-09151

MEMORANDUM OPINION

Before Justices Myers, Evans, and Schenck

Opinion by Justice Schenck

In this original proceeding, relator complains of the trial court’s denial of relator’s motion 

to dismiss the intervenor’s claims for lack of subject matter jurisdiction and, alternatively, the 

trial court’s refusal to enforce a forum selection clause and refusal to dismiss based on forum non 

conveniens. After reviewing the petition, the real parties’ responses, relator’s reply, and the 

mandamus record, we conclude relator is entitled to relief from the trial court’s refusal to enforce 

the forum selection clause. We conditionally grant the writ. 

Background

Relator Bruno Kübler is the German, insolvency administrator of Thielert Aircraft, a 

German company that manufactures and supplies replacement aircraft engine parts. Superior Air 

Parts, Inc., a former customer to whom Thielert Aircraft manufactured and supplied engine parts, 

sued Thielert Aircraft in Dallas. Superior’s lawsuit is based on a dispute over the ownership and 

possession of drawings and technical sheets allegedly given to Thielert Aircraft by Superior and 
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models and drawings created by Thielert Aircraft that relate to or contain information regarding 

Superior (“the Property”). 

After Thielert Aircraft was placed in an insolvency proceeding in Germany, Kübler

negotiated the sale of Thielert Aircraft’s assets to another German company, Technify Motors, 

GmbH. The sale was memorialized in the Business Purchase and Transfer Agreement (“the 

transfer agreement”) and was executed in January 2013. The transfer agreement provides for 

jurisdiction of any disputes related to the agreement as the corporate seat of Thielert Aircraft, 

which is Lichtenstein, Germany. Kübler and Technify disagree on whether Germany is the 

exclusive place of jurisdiction. 

Before the sale to Technify closed, Superior demanded Kübler return the Property. 

Kübler and Technify addressed Superior’s demand in a “Closing Protocol to the Business 

Purchase and Transfer Agreement” (“the closing protocol”) that carved out the Property from the 

asset purchase. The closing protocol set forth the agreement between Kübler and Technify to 

exclude the Property from the assets transferred to Technify, noted that Kübler and Technify 

could not reach an agreement on the value of the Property, and provided remedies for Technify 

should the final decision of the Texas courts prohibit Kübler from transferring the Property to 

Technify. The closing protocol provides that Technify “shall have and retain any and all 

potential rights and claims, in particular claims for damages within the meaning of §§ 249 et seq. 

German Civil Code,” that Technify might have against Kübler because the Property cannot be 

transferred to Technify. Kübler and Technify agreed to cap damages for such a claim at 

€3,500,000.00. The closing protocol also notes that Kübler would not transfer the Property to 

Technify “until it has been legally finally and unappealable [sic] decided or agreed on, if and to 

what extent [Kübler] shall be entitled to transfer” the Property to Technify. 
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Technify intervened in the underlying lawsuit between Kübler and Superior. Technify 

asserted a claim for declaratory judgment as to “the respective rights” of Superior, Kübler, and 

Technify in the Property and asserted a claim for “contract damages,” alleging that Kübler and 

Technify had agreed that “in the event of a legal determination that Kübler must transfer the 

Property” to Superior, then Technify “will have a claim for damages against Kübler.” Kübler

filed a motion to dismiss and plea to the jurisdiction seeking dismissal of Technify’s intervention 

and claims, which the trial court denied. 

In this original proceeding, Kübler contends dismissal was required because (1) 

Technify’s contract damages claim is not ripe because no judicial determination has been made 

as to Superior’s right to the Property, (2) the transfer agreement’s forum selection clause 

required Technify to file suit in Germany, and (3) Dallas is an inconvenient forum for a contract 

dispute between two German companies that is governed by German law. 

Forum Selection Clause

Forum-selection clauses provide parties with an opportunity to contractually preselect the 

jurisdiction for dispute resolution. Pinto Tech. Ventures, L.P. v. Sheldon, No. 16-0007, 2017 WL 

2200357, at *5 (Tex. May 19, 2017) (citing In re AIU Ins. Co., 148 S.W.3d 109, 111 (Tex. 2004)

(orig. proceeding)). 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, 675 (Tex. 2009) (orig. proceeding) (per curiam). 

Forum-selection clauses are generally enforceable and presumptively valid. In re Laibe 

Corp., 307 S.W.3d 314, 316 (Tex. 2010) (orig. proceeding) (per curiam); In re Int'l Profit 

Assocs., 274 S.W.3d at 675. Failing to give effect to contractual forum-selection clauses and 

forcing a party to litigate in a forum other than the contractually chosen one amounts to “ ‘clear 
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harassment’ ... injecting inefficiency by enabling forum-shopping, wasting judicial resources, 

delaying adjudication on the merits, and skewing settlement dynamics....” In re Lisa Laser USA, 

Inc., 310 S.W.3d 880, 883 (Tex. 2010) (orig. proceeding) (quoting In re AutoNation, Inc., 228 

S.W.3d 663, 667-68 (Tex. 2007) (orig. proceeding)). A party attempting to show that such a 

clause should not be enforced bears a heavy burden. In re Lyon Fin. Servs., Inc., 257 S.W.3d 

228, 232 (Tex. 2008) (orig. proceeding) (per curiam) (citing In re AIU Ins. Co., 148 S.W.3d at

113); In re Laibe Corp., 307 S.W.3d at 316; In re ADM Inv’r Servs., Inc., 304 S.W.3d 371, 375

(Tex. 2010) (original proceeding). A trial court abuses its discretion in refusing to enforce a 

forum-selection clause unless the party opposing enforcement meets its heavy burden of showing 

that (1) enforcement would be unreasonable or unjust, (2) the clause is invalid for reasons of 

fraud or overreaching, (3) 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 ADM Inv. Servs., Inc., 304 S.W.3d at 375; M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 

1, 15–17 (1972). Technify did not meet that heavy burden here.

Analysis 

The transfer agreement includes the following forum selection clause:

This Agreement is subject to the laws of the Federal Republic of Germany. To 

the extent legally permitted, exclusive place of jurisdiction is the seat of the 

Insolvency Debtor.

It was Technify’s burden to establish one of the four exceptions to the general rule that forum 

selection clauses are mandatory and enforceable. To meet that burden, Technify argued below

that (1) the clause is invalid and unenforceable because Kübler is not a proper party to the clause 

under German law, (2) the clause does not apply to all claims asserted by Technify, (3) 

enforcement of the clause would be unreasonable or unjust, and (4) Germany would be a 

seriously inconvenient forum for trial. Technify failed to meet its burden of proof.
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Technify first argues that the clause is not mandatory and is unenforceable because it 

conditions the exclusive place of jurisdiction only “to the extent legally permitted” and German 

law does not permit an insolvency administrator like Kübler to be a party to a forum selection 

clause. Technify and Kübler each presented expert testimony on German law. The experts 

agreed that the German Federal Supreme Court had not yet decided whether an insolvency 

administrator is permitted to be a party to a forum selection clause under German law. But the 

experts disagreed regarding how the court would decide the issue if it was presented to the court. 

Whether the German courts would enforce the clause is irrelevant, however, because Texas law 

does not require Kübler to prove that German courts would recognize the validity of the clause or 

allow Kübler to enforce the clause. See Deep Water Slender Wells, Ltd. v. Shell Intern. Expl. & 

Prod., Inc., 234 S.W.3d 679, 695 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing 

Phoenix Network Techs. (Europe) Ltd. v. Neon Sys., Inc., 177 S.W.3d 605, 618 (Tex. App.—

Houston [1st Dist.] 2005, no pet.) (holding that under federal analysis adopted by Texas Supreme 

Court, party invoking forum-selection clause need not show that forum selected recognizes the 

validity of forum-selection clauses). We are aware of recent federal case law proposing a more 

nuanced approach to this “lex fori” rule that would allow consideration of some aspects of the 

chosen foreign law as part of the analysis of the forum selection clause. Yavuz v. 61 MM, Ltd., 

465 F.3d 418, 421, 430–31 (10th Cir. 2006). But even under that line of authority, foreign law 

would govern only the issue of construction of the clause’s reach, not its fundamental 

enforceability. E.g., Phillips v. Audio Active Ltd., 494 F.3d 378, 385 (2d Cir. 2007); Lanier v. 

Syncreon Holdings, Ltd., No. 11-14780, 2012 WL 3475680, at *5, 6 (E.D. Mich. Aug. 14, 2012); 

Diesel Props S.r.L. v. Greystone Bus. Credit II LLC, No. 07 Civ. 9580(HB), 2008 WL 4833001, 

*6–7 (S.D.N.Y. Nov. 6, 2008). Texas law deems forum-selection clauses prima facie valid and 

will be enforced unless the opponent makes a strong showing that the forum-selection clause 
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should be set aside. In re AIU Ins. Co., 148 S.W.3d at 113–14; In re Automated Collection 

Techs., Inc., 156 S.W.3d 557, 559 (Tex. 2004) (orig. proceeding) (per curiam). 

Moreover, Technify’s arguments misconstrue the clause’s language. Courts have 

construed similar provisions to be mandatory provisions conferring exclusive jurisdiction in the 

specified forum. See, e.g. Weber v. PACT XPP Techs., AG, 811 F.3d 758, 773 (5th Cir. 2016) 

(under German law, clause stating “[t]o the extent permitted by law, jurisdiction, venue, courts, 

and place of performance shall be at the corporate seat of [German corporation]” confers 

exclusive and mandatory jurisdiction in the specified forum); May v. Ticketmaster Entm’t, LLC,

No. 3:10-CV00760, 2010 WL 4024257, at *2, 3 (M.D. Tenn. Oct. 13, 2010) (forum selection 

clause stating that the parties “submit to the exclusive jurisdiction of the Delaware Chancery 

Court to the fullest extent permitted by Applicable Law and, to the extent not so permitted, in 

any court sitting in the State of Delaware” specifies Delaware state court as the exclusive forum); 

In re Facebook, Inc., IPO Sec. & Derivative Litig., 922 F. Supp. 2d 445, 461 (S.D.N.Y. 2013), 

aff’d sub nom. In re Facebook, Inc., Initial Pub. Offering Derivative Litig., 797 F.3d 148 (2d Cir. 

2015) (forum selection clause stating “the Court of Chancery of the State of Delaware shall, to 

the fullest extent permitted by law, be the sole and exclusive forum” is mandatory, not 

permissive). 

The phrase “to the extent legally permitted” does not make the provision permissive and 

does not imply a requirement that the parties prove that they have authority to enter into the 

forum selection clause. Rather, the proper focus is on the statement of exclusivity and 

determination of whether the applicable law would permit exclusive jurisdiction in the chosen 

forum. For example, in May, the record did not establish that applicable law would not permit 

exclusive jurisdiction in the Delaware Court of Chancery or that the suit could not have been 

filed in that court. May, 2010 WL 4024257 at *2, 3. The court, therefore, held that the clause 
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mandated exclusive jurisdiction in the Delaware state courts. Id. at * 3, n. 15; see also In re 

Facebook, 922 F. Supp. 2d at 461 (focusing on use of the term “exclusive” rather than modifying 

phrase “to the fullest extent permitted by law”). The same analysis applies here. The plain 

language of the forum selection clause provides for exclusive jurisdiction in Thielert Aircraft’s 

corporate seat, which is in Lichtenstein, Germany. The record does not establish that German 

law prohibits enforcement of forum selection clauses. The forum selection clause, thus, confers 

mandatory and exclusive jurisdiction in Lichtenstein, Germany.

Technify next argues that its declaratory judgment claim and Superior’s declaratory 

judgment claims against Technify are outside the scope of the clause. This argument disregards 

that Superior brought claims against Technify only in response to Technify’s intervention. 

Superior’s declaratory judgment claims against Technify state that Superior seeks a declaration 

that Superior has a superior right to the Property over Technify. But Superior’s request for that 

declaration arose only because Technify intervened and sought to have all questions regarding 

the Property resolved in Texas. If the intervention is dismissed, then Superior’s claims would 

become moot. As for Technify’s declaratory judgment claim, that claim seeks the same relief 

whether asserted against Kübler or Superior – a declaration that Technify has ownership rights in 

the Property by virtue of the transfer agreement. The transfer agreement included the forum 

selection clause, meaning claims between Kübler and Technify regarding the transfer agreement 

should be heard in Germany per that clause. Moreover, the dispute between Kübler and 

Technify should have no bearing on the suit between Superior and Kübler because Technify is 

not a party to the Superior/Kübler agreement, Technify has no rights under that agreement, and 

the claims raise separate and distinct liability and damages issues. To be sure, Technify’s claims 

all arise from the transfer agreement and, therefore, are subject to its forum selection clause. 
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Next, Technify argues that enforcing the clause would be unreasonable or unjust because 

doing so would require Superior’s claims against Kübler to be tried in a separate forum from 

Technify’s claims against Kübler. Technify describes this as “an intertwined dispute” among 

three parties all claiming an interest in the Property. But that misconstrues the nature of these 

disputes. Superior and Kübler dispute who owns the Property, whereas Technify and Kübler 

dispute the damages incurred by Technify, if any, as a result of Kübler’s failure to transfer the 

Property to Technify in accordance with the transfer agreement. Technify’s only interest in the 

Property is derivative of Kübler’s ownership of the Property. Technify has no independent right 

to seek relief from Superior and no contract with Superior. If the Texas court decides the 

Superior-Kübler dispute adversely to Kübler, Technify may then assert claims against Kübler in 

Germany pursuant to the transfer agreement and the closing protocol. Technify and Kübler 

specifically recognized this dichotomy of claims and proceedings in the closing protocol. “The 

mere existence of another party does not compel joint litigation, even if the claims arise out of 

the same nucleus of facts.” In re ADM Inv’r Servs., Inc., 304 S.W.3d at 375; In re Int’l Profit 

Assocs., Inc., 274 S.W.3d at 680 (“If all it takes to avoid a forum-selection clause is to join as 

defendants local residents who are not parties to the agreement, then forum-selection clauses will 

be of little value.”). It is not unreasonable or unjust to require Technify to honor the bargain it 

made with knowledge of the Texas litigation regarding the Property. See In re ADM Inv’r Servs., 

Inc., 304 S.W.3d at 375.1

Finally, Technify argues that Germany would be a seriously inconvenient forum for trial

because of the Texas lawsuit. When inconvenience in litigating in the chosen forum is 

foreseeable at the time of contracting, the challenger must “show that trial in the contractual 

 1 Identical arguments over efficiency and resulting piecemeal litigation have been made and rejected as a basis for resisting enforcement of 

arbitration agreements. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 20 (1983).
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forum will be so gravely difficult and inconvenient that he will for all practical purposes be 

deprived of his day in court.” In re AIU, 148 S.W.3d at 113 (quoting M/S Bremen v. Zapata Off–

Shore Co., 407 U.S. at 18); see also Lyon, 257 S.W.3d at 234 (“By entering into an agreement 

with a forum-selection clause, the parties effectively represent to each other that the agreed 

forum is not so inconvenient that enforcing the clause will deprive either party of its day in court, 

whether for cost or other reasons.”). Here, Thielert Aircraft and Technify are sophisticated 

businesses that negotiated and knowingly entered into the transfer agreement and included the 

forum selection clause. By doing so, they effectively represented that Germany is not a seriously 

inconvenient forum. 

Further, the record establishes that Technify will not be deprived of its day in court by 

enforcing the forum selection clause. Technify has filed an action against Kübler in Germany 

relating to Technify’s dispute with Kübler over the Property and Technify’s rights to the 

Property under the transfer agreement. Technify bargained with Kübler for German courts 

applying German law to determine Technify’s and Kübler’s rights under the transfer agreement 

and rights related to the transfer of assets. By agreeing to the terms of the closing protocol, 

Technify acknowledged the Superior claims and agreed to have its own rights to the Property 

and damages, if any, decided separately from Superior’s lawsuit against Kübler. The closing 

protocol does not remove or amend the forum selection clause. Under the plain terms of section 

7(2) of the closing protocol, the forum selection clause, therefore, remained “unaffected and 

applicable.” Technify has no contractual relationship with Superior. Technify’s only interest in 

Superior’s dispute with Kübler is how the resolution of that dispute impacts Technify’s rights 

under the transfer agreement. Technify agreed to have those rights determined exclusively in 

Germany. Technify’s circumstances here are not sufficient to meet the heavy burden it has to 
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avoid a forum-selection clause. See In re ADM Inv’r Servs., 304 S.W.3d at 375; see also AIU, 

148 S.W.3d at 113. 

Conclusion

Technify failed to meet its burden of proof to establish one of the four exceptions to 

avoid enforcement of the forum selection clause. The trial court, therefore, abused its discretion 

by refusing to enforce the forum selection clause and denying Kübler’s motion to dismiss. 

Because we find for Kübler as to the enforceability of the forum selection clause, we need not 

address Kübler’s remaining issues. We, therefore, conditionally grant relator’s petition for writ 

of mandamus and direct the trial court to issue written orders within fifteen days of the date of 

this opinion vacating the December 2, 2016 order denying relator’s motion to dismiss 

intervenor’s claims and motion to strike intervenor’s claims, granting relator’s motion to dismiss 

Technify’s claims, and dismissing Technify’s claims.

161443F.P05

/David J. Schenck/

DAVID J. SCHENCK

JUSTICE