NUMBER 13-21-00243-CV 

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

LOGICORP MEXICO SA DE CV, Appellant,

v.

JORGE ANDRADE, Appellee.

 

On appeal from the 332nd District Court

of Hidalgo County, Texas.

 

MEMORANDUM OPINION 

Before Chief Justice Contreras and Justices Benavides and Tijerina

Memorandum Opinion by Chief Justice Contreras

In this complex business dispute, appellant Logicorp Mexico SA de CV (Logicorp) 

argues the trial court erred by granting a motion to dismiss filed by appellee Jorge 

Andrade pursuant to a contractual forum selection clause. By three issues, Logicorp 

asserts: (1) the court erred in concluding the clause applies to its claims against Andrade; 

(2) Andrade waived enforcement of the clause; and (3) enforcement of the clause would 
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be unreasonable and unjust because the selected forum—Monterrey, Nuevo Leon, 

Mexico—is seriously inconvenient for trial. Because we find that Andrade waived 

enforcement of the clause by his litigation conduct, we reverse and remand.

I. BACKGROUND

Andrade, a dual citizen of Mexico and the United States, co-founded Logicorp, a 

freight hauling company, in Mexico in 2005. He owned a fifty percent interest in the firm. 

Through his solely-owned company J Double A Holding, LLC (JDA), Andrade also owned 

three American affiliates of Logicorp (collectively Logicorp US). In 2017, Andrade decided 

to sell sixty-one percent of his shares in JDA and Logicorp US to a private equity firm, but 

the purchaser needed to borrow the funds necessary to complete the purchase. To 

facilitate the sale, Andrade executed a “Debt Subordination Agreement” on behalf of 

himself and Logicorp, providing in part that JDA and Logicorp US would not pay 

Logicorp’s accounts payable until the purchase money loans were paid in full.

In 2018, Logicorp and Lean Cargo Transportation, LLC (LCT), a freight hauling 

concern based in McAllen, sued Logicorp US in the 332nd District Court, arguing that 

they are owed $5.5 million under various trucking contracts with Logicorp US. Logicorp 

US counterclaimed against Logicorp, and Logicorp US and JDA filed a third-party claim 

against Andrade for fraud and breach of contract. In its counterclaim, Logicorp US argued 

that, pursuant to the subordination agreement, Logicorp is “not entitled to payment of any 

debt owed to it by [JDA] or [Logicorp US] at this time.” In their third-party claim, Logicorp 

US and JDA argued that Andrade (1) fraudulently represented that he had authority to 

bind Logicorp to the subordination agreement, and (2) breached a separate agreement 

that he would cause Logicorp to provide carrier services only to Logicorp US and JDA.
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Logicorp and LCT then filed a supplemental petition as to Andrade, alleging fraud, 

breach of contract, and other causes of action. Specifically, Logicorp and LCT argued 

that Andrade made “material misrepresentations to [them] of continued business and 

payment” and falsely represented to the private equity firm that the debt owed to Logicorp 

and LCT “would in large part be subordinated.” They further argued, as Logicorp US and 

JDA did, that Andrade “did not have the authority to subordinate [Logicorp US]’s debt to 

[Logicorp and LCT].”

On November 12, 2019, counsel for LCT, Logicorp Mexico, and Andrade signed 

an “Agreed Docket Control Order” setting the cause for trial on June 15, 2020. In May of 

2020, the parties filed a “Joint Motion for Continuance” noting that they have not been 

able to conduct discovery due to the COVID-19 pandemic. The trial court granted the 

motion, and it later signed a “First Amended Agreed Docket Control Order” re-setting trial 

for February 8, 2021, and a “Second Amended Agreed Docket Control Order” re-setting 

trial for September 20, 2021.

On August 18, 2020, Andrade moved to dismiss Logicorp’s claims against him 

based on a forum selection clause contained within Logicorp’s by-laws, which are in 

Spanish and were adopted at the time of the company’s founding in accordance with 

Mexican law. According to a certified translation attached to the motion to dismiss, the 

forum selection clause states: “ARTICLE 6.- FORUM:- The Corporation and its 

Shareholders expressly submit to the jurisdiction of the competent Courts of the city of 

Monterrey, Nuevo Leon, in case of conflict or controversy between one and others, 

waiving any forum that may favor them due to their domicile.” The motion also included 

an affidavit in which Andrade averred, among other things, that when Logicorp was 
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founded, “all parties intended for any and all disputes between [Logicorp] and its 

shareholders to be decided exclusively in the courts of Monterrey, Nuevo Leon, Mexico 

according to Mexican law.”

Logicorp filed a response in which it argued: (1) the forum selection clause does 

not apply to its claims against Andrade; (2) Andrade waived enforcement of the clause by 

substantially invoking the judicial process in Texas to Logicorp’s prejudice; (3) 

enforcement would be unreasonable because Mexico is a seriously inconvenient forum; 

(4) Logicorp’s claims against Andrade do not “intrinsically arise out of the agreement 

containing” the forum selection clause; and (5) Logicorp’s by-laws allow its “Sole 

Administrator” to unilaterally waive the forum selection clause, thereby allowing the 

company to sue in an alternative forum.

After a hearing on November 23, 2020, the trial court granted Andrade’s motion to 

dismiss and severed the dismissed claims.1 This appeal followed.

II. FORUM SELECTION CLAUSES

We review the trial court’s decision whether to enforce a forum selection clause for 

an abuse of discretion, deferring to the court’s factual determinations if they are supported 

by the evidence, but reviewing legal determinations de novo. In re Labatt Food Serv., 

L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). As there were no findings of 

fact or conclusions of law here, we infer that the trial court made all fact findings that have 

support in the record and are necessary to uphold the ruling. See Moki Mac River 

Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007).

1 The following claims therefore remain pending in the trial court: (1) LCT’s claims against Andrade; 

(2) LCT and Logicorp’s claims against Logicorp US; (3) Logicorp US’s counterclaim against LCT and 

Logicorp; and (4) JDA and Logicorp US’s third-party claims against Andrade.
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Contractual forum selection clauses are generally enforceable in Texas. In re 

Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); see In 

re AIU Ins., 148 S.W.3d 109, 112 (Tex. 2004). The party seeking to enforce a contractual 

forum selection provision has the initial burden of establishing that the parties entered 

into an agreement to an exclusive forum and that the agreement applies to the claims 

involved. HMT Tank Serv. LLC v. Am. Tank & Vessel, Inc., 565 S.W.3d 799, 805 (Tex. 

App.—Houston [14th Dist.] 2018, no pet.); Young v. Valt.X Holdings, Inc., 336 S.W.3d 

258, 262 (Tex. App.—Austin 2010, pet. dism’d). If the party seeking enforcement 

establishes these prerequisites, the burden then shifts to the party opposing enforcement 

to make a “strong showing” overcoming the prima facie validity of the forum selection 

clause. HMT Tank Serv., 565 S.W.3d at 805; Young, 336 S.W.3d at 262. “The burden of 

proof is heavy for the party challenging enforcement.” In re ADM Inv’r Servs., Inc., 304 

S.W.3d 371, 375 (Tex. 2010) (orig. proceeding); see In re AIU Ins., 148 S.W.3d at 113; 

Young, 336 S.W.3d at 262.

Under this framework, a forum selection clause must be enforced unless the party 

opposing enforcement of the clause shows “clear evidence 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

Nationwide, 494 S.W.3d at 712 (citing In re Lyon Fin. Servs., Inc., 257 S.W.3d 228, 231–

32 (Tex. 2008) (per curiam)). “Absent these circumstances, a trial court should enforce a 

mandatory forum-selection clause by granting a motion to dismiss.” Id.
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III. DISCUSSION

The parties do not dispute that Article 6 of Logicorp’s by-laws constitutes an 

enforceable agreement to litigate at least some claims between Logicorp and Andrade in 

Mexico.2 Instead, Logicorp argues the forum selection clause: (1) does not apply to the 

particular claims at issue in this case; (2) was unilaterally waived by Logicorp’s “Sole 

Administrator” pursuant to authority granted elsewhere in the by-laws; (3) was waived by 

Andrade by his participation in litigation in Texas; and (4) should not apply because 

Mexico is a seriously inconvenient forum.

A. Applicability of Clause

Logicorp contends by part of its first issue that the specific claims it raised against 

Andrade fall outside of the scope of the forum selection clause. It notes that, though the 

clause states the parties agreed to submit to the jurisdiction of Monterrey courts “in case 

of conflict or controversy between one and others,” it does not state that it applies to “any” 

or “all” such controversies; moreover, it does not limit its applicability to claims which 

“arise from” or “relate to” the by-laws or management of the corporation. According to 

Logicorp, then, the “commonsense construction” of the clause is that it “applies only to 

claims that would not exist but for the Bylaws’ terms, i.e., that the Bylaws are an element 

of the cause of action.” Logicorp then argues that its claims against Andrade are wholly 

unrelated to the by-laws—instead, its “pivotal claim” is that Andrade “committed fraud 

2 The parties do not cite any cases applying a forum selection clause contained in a company’s bylaws. We observe that, in 2013, a federal district court appeared to hold that such a clause may be 

enforceable if, among other things, the shareholders were put on notice of its terms. See In re Facebook, 

Inc., IPO Sec. & Derivative Litig., 922 F. Supp. 2d 445, 461 (S.D.N.Y. 2013), aff’d, 797 F.3d 148 (2d Cir. 

2015); see also In re MetroPCS Commc’ns, Inc., 391 S.W.3d 329, 340 (Tex. App.—Dallas 2013, no pet.) 

(holding that the trial court abused its discretion by granting injunctive relief without first ruling on motions 

seeking to enforce a forum selection clause contained in corporate by-laws). We assume, but do not decide, 

that such a clause may theoretically be enforceable in litigation between a company and its shareholder.
7

independent of his position as shareholder”—and therefore, the forum selection clause 

contained in Article 6 of the by-laws does not apply. In response, Andrade notes that 

Logicorp repeatedly referenced Andrade’s status as a “partner and shareholder” of 

Logicorp in its petition.

Logicorp cites In re Wilmer Cutler Pickering Hale & Dorr LLP, in which the Dallas 

Court of Appeals held that a forum selection clause applied to a claim “only if the claimant 

is relying on the terms and authority of the agreement [in which the clause appeared] as 

the basis for the rights sued upon.” No. 05-08-01395-CV, 2008 WL 5413097, at *4 (Tex. 

App.—Dallas Dec. 31, 2008, orig. proceeding) (mem. op.). But the forum selection clause 

in that case explicitly applied only to claims which are “instituted under” the agreement at 

issue. Id. Logicorp also cites Apollo Property Partners, LLC v. Diamond Houston I, L.P., 

in which a suit was found to fall outside the scope of a forum selection clause contained 

in a partnership agreement. No. 14-07-00528-CV, 2008 WL 3017549, at *3 (Tex. App.—

Houston [14th Dist.] Aug. 5, 2008, no pet.) (mem. op.). But again, unlike in this case, the 

forum selection clause in that case was expressly limited to claims “arising out of or 

relating to” the agreement. See id. at *2. Because the claim at issue was for dissolution 

of the partnership, it was not within the scope of the forum selection clause. Id. at *3.

As both parties recognize, the forum selection clause in Article 6 of Logicorp’s bylaws contains no language expressly limiting its scope to certain claims, unlike the 

clauses considered in Wilmer Cutler or Apollo Property Partners. Those cases are 

therefore inapposite. Logicorp cites no other authority, and we find none, establishing that 

a forum selection clause which is broadly applicable by its own terms “in case of conflict 

or controversy” between the specified parties may only apply to claims arising out of or 
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related to the underlying agreement. Instead, the plain language of the clause indicates 

that it applies to any “conflict or controversy” between Logicorp and any of its 

shareholders, including Andrade. We overrule this part of Logicorp’s first issue.

B. Waiver by Sole Administrator

Logicorp also contends by its first issue that the forum selection clause is 

inapplicable because Abraham Sosa, its co-founder, unilaterally waived the clause in his 

capacity as Logicorp’s “Sole Administrator.” Logicorp relies on the following provision of 

its by-laws:

ARTICLE 21.- FACULTIES OF THE ADMINISTRATIVE BODY.- THE 

SOLE ADMINISTRATOR or, when appropriate, the BOARD OF 

DIRECTORS shall have the following faculties, powers of attorney, and 

mandates before any national or foreign person or authority.

I) GENERAL POWER OF ATTORNEY FOR LITIGATIONS AND 

COLLECTIONS.- To represent the Corporation before all kinds of 

administrative, labor, judicial, municipal, state or federal authorities with the 

broadest Power of Attorney for litigations and collections . . . they shall 

therefore be empowered, without limitation, . . . . to waive jurisdiction of 

domicile . . . .

Logicorp argues that, by choosing to litigate Logicorp’s claims in Texas, Sosa effectively 

exercised his authority “to waive jurisdiction of domicile” on behalf of Logicorp, thereby 

“overr[iding] the forum selection clause.” Logicorp acknowledges that, under this 

construction, the forum selection clause does not bind Logicorp, but it argues that this 

fact does not render the clause illusory. See In re FirstMerit Bank, N.A., 52 S.W.3d 749, 

757 (Tex. 2001) (noting an arbitration clause does not require mutuality of obligation, so 

long as the underlying contract is supported by adequate consideration).

In response, Andrade notes that the plain language of Article 21, Section I of the 

by-laws, set forth above, does not explicitly provide that the sole administrator may waive 

the forum selection clause contained in Article 6. Instead, Article 21 permits the 
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administrator to “waive jurisdiction of domicile,” which according to Andrade “has no 

impact on the forum selection clause.” Andrade further contends that, to the extent there 

is a conflict between Article 6 and Article 21, Article 6 controls because it specifically 

governs company-versus-shareholder suits, whereas Article 21 generally covers any 

litigation concerning the company. See In re Mem’l Hermann Hosp. Sys., 464 S.W.3d 

686, 716 (Tex. 2015) (noting that “conflicts between general and specific provisions favor 

the specific”). And, Andrade notes that, even if the sole administrator is empowered to 

waive Logicorp’s right to enforce the forum selection clause, he is not empowered to 

waive Andrade’s right to enforce that clause.

We agree with Andrade’s final point. Generally, the goal of contract interpretation 

is to ascertain the parties’ true intent as expressed by the plain language they used. Great 

Am. Ins. v. Primo, 512 S.W.3d 890, 892–93 (Tex. 2017). We examine and consider the 

entire writing in an effort to harmonize and give effect to all its provisions so that none will 

be rendered meaningless. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 

2003). Article 21 of the by-laws grants Logicorp’s sole administrator a general power of 

attorney to act on behalf of the company in litigation. One of the many specific actions the 

sole administrator is entitled to do in this capacity is to “waive jurisdiction of domicile.” But 

even assuming that “jurisdiction of domicile” is intended to refer to the forum selection 

clause in Article 6, that does not mean that Article 21 gives the administrator the authority 

to unilaterally nullify Article 6 whenever it pleases merely by filing suit in a different forum. 

As noted, Logicorp does not dispute that Article 6 constitutes an enforceable agreement 

between it and its shareholders, including Andrade, to litigate certain claims in Monterrey. 

While Logicorp is correct that a forum selection clause does not always require mutuality 
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of obligations in order to be enforceable, see In re Mem’l Hermann Hosp. Sys., 464 

S.W.3d at 716, there is nothing in the language of Article 6 indicating that the obligation 

set forth there is, in fact, not mutual. To the contrary, it binds both parties—the company 

and its shareholders—to litigate claims “between one and others” in Monterrey.

At most, Article 21 grants the sole administrator the power to waive the company’s 

right to enforce the clause. It does not grant the sole administrator the power to waive 

Andrade’s right as a shareholder to enforce the clause. As Andrade notes, to construe 

Article 21 as granting such a power would lead to an absurd result, as it would imply that 

Logicorp’s sole administrator has the general power to act in litigation on behalf of 

Andrade—the party that Logicorp is suing. We will not construe the by-laws in a manner 

that would lead to absurd results. See Sanchez v. Barragan, 624 S.W.3d 832, 840 (Tex. 

App.—El Paso 2021, no pet.). This part of Logicorp’s first issue is overruled.

C. Waiver by Litigation Conduct

By its second issue, Logicorp contends that Andrade waived his right to enforce 

the forum selection clause by participating in litigation in Texas. Logicorp claims 

specifically that Andrade substantially invoked the judicial process in Texas for the 

following reasons: (1) he indicated he would make an affirmative claim for attorney’s fees; 

(2) he sought a defensive summary judgment on LCT’s claims; (3) he waited fifteen 

months after filing his answer before moving to dismiss; (4) he did not move to dismiss 

until five months before the second trial setting; and (5) though his attorneys claimed they 

were not aware of the forum selection clause until 2020, Andrade knew or should have 

known of it because he was a signatory to the by-laws. Logicorp also notes that it did not 

sue Andrade in Texas until after Andrade had already been named as a defendant by 
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Logicorp US. In arguing that it was prejudiced by Andrade’s delay in invoking the forum 

selection clause, Logicorp notes that Andrade did not move to dismiss until after Logicorp 

obtained a discovery order from the trial court compelling Logicorp US to disclose the 

subordination agreement, and only one week before the scheduled deposition of Brian 

Anderson, one of the private equity investors that purchased Logicorp US from Andrade. 

Logicorp contends that

[o]nce the tide of the discovery battle turned against him[,] Andrade sought 

to arrest the discovery process by transfer to a Mexican forum. By pulling 

the plug, Andrade goes to Mexico where Anderson’s Texas deposition 

might not be admissible, [Logicorp] might have to fight the authentication 

battle over documents, and witnesses unfavorable to him were outside 

Mexico.

1. Applicable Law

“[L]ike other contractual rights, a forum-selection clause may be waived, and it

would ordinarily be ‘unreasonable or unjust’ for a court to enforce a forum selection clause 

after it has been waived.” In re Nationwide, 494 S.W.3d at 712. Generally, “waiver” 

consists of the intentional relinquishment of a known right or intentional conduct 

inconsistent with claiming that right. Id. (citing Jernigan v. Langley, 111 S.W.3d 153, 156 

(Tex. 2003) (per curiam)). In the context of forum selection clauses specifically, the Texas 

Supreme Court has held that waiver may occur if a party “substantially invok[es] the 

judicial process” in a non-selected forum “to the other party’s detriment or prejudice.” Id.; 

Perry Homes v. Cull, 258 S.W.3d 580, 593 (Tex. 2008); see In re Automated Collection 

Techs., Inc., 156 S.W.3d 557, 559 (Tex. 2004) (orig. proceeding) (recognizing that cases 

involving waiver in the arbitration context are analogous to waiver in the forum selectionclause context). Prejudice is the “inherent unfairness in terms of delay, expense, or 

damage to a party’s legal position that occurs when the party’s opponent forces it to 
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litigate an issue” and later seeks to dismiss the case. Kennedy Hodges, L.L.P. v. 

Gobellan, 433 S.W.3d 542, 545 (Tex. 2014) (quoting Perry Homes, 258 S.W.3d at 597); 

see G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 515 (Tex. 2015).

“[T]he universal test for implied waiver by litigation conduct is whether the party’s 

conduct—action or inaction—clearly demonstrates the party’s intent to relinquish, 

abandon, or waive the right at issue—whether the right originates in a contract, statute, 

or the constitution.” LaLonde v. Gosnell, 593 S.W.3d 212, 219–20 (Tex. 2019). “This is a 

high standard.” Id. In evaluating whether a party’s conduct clearly demonstrates an intent 

to waive a right, we employ a “case-by-case” approach that considers “all the facts and 

circumstances attending a particular case.” Id.; Perry Homes, 258 S.W.3d at 591–93.

In arbitration cases, courts have considered a wide variety of non-exclusive factors 

when conducting a waiver inquiry, including:

• how long the party moving to compel arbitration waited to do so;

• the reasons for the movant’s delay;

• whether and when the movant knew of the arbitration agreement during the 

period of delay;

• how much discovery the movant conducted before moving to compel 

arbitration, and whether that discovery related to the merits;

• whether the movant requested the court to dispose of claims on the merits;

• whether the movant asserted affirmative claims for relief in court;

• the extent of the movant’s engagement in pretrial matters related to the 

merits (as opposed to matters related to arbitrability or jurisdiction);

• the amount of time and expense the parties have committed to the litigation;

• whether the discovery conducted would be unavailable or useful in 

arbitration;

• whether activity in court would be duplicated in arbitration; [and]
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• when the case was to be tried.

G.T. Leach Builders, LLC, 458 S.W.3d at 512; Perry Homes, 258 S.W.3d at 590–91. 

These factors may be used in considering whether a party has waived enforcement of a 

forum selection clause. See In re Nationwide, 494 S.W.3d at 718 & n.4 (Guzman, J., 

dissenting); In re Automated Collection Techs., 156 S.W.3d at 559; In re Boehme, 256 

S.W.3d 878, 884 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding). “Generally, 

no one factor is, by itself, dispositive.” RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 

430 (Tex. 2016). That said, the Texas Supreme Court has observed that “key factors” 

include whether the movant delayed in moving to enforce the clause, the amount of 

discovery conducted by the movant, and whether the movant sought disposition on the 

merits. Richmont Holdings, Inc. v. Superior Recharge Sys., L.L.C., 455 S.W.3d 573, 575 

(Tex. 2014).

2. Waiver

First, we examine how long Andrade waited to file a motion to dismiss based on 

the forum selection clause, his reasons for the delay, and whether and when he knew of 

the forum selection clause during the period of delay. See G.T. Leach Builders, LLC, 458 

S.W.3d at 512. Logicorp first named Andrade as a defendant in its supplemental petition 

filed on May 29, 2019, and Andrade filed his motion to dismiss based on the forum 

selection clause nearly fifteen months later, on August 18, 2020. Fifteen months is not an 

insignificant period of time, even considering the glacial pace at which the judicial system 

often operates. Nevertheless, even a substantial, knowing, and unexplained delay will not 

alone be sufficient to find waiver. See Richmont Holdings, Inc., 455 S.W.3d at 575–76 

(rejecting waiver even though the party moving to compel arbitration had drafted the 

agreement containing the arbitration clause and had offered an implausible explanation 
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for a nineteen- month delay); In re Vesta Ins. Grp., Inc., 192 S.W.3d 759, 763 (Tex. 2006) 

(orig. proceeding) (“Delay alone generally does not establish waiver.”); Pounds v. Rohe, 

592 S.W.3d 549, 555 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (“In sum, Pounds 

and Black’s delay was not only substantial, it was knowing and unexplained. If this was 

the sum total of the factors weighing in favor of waiver, waiver nonetheless would remain 

inappropriate.”).

Concerning excuses for the delay, Andrade points to the “Joint Motion for 

Continuance” filed on May 1, 2020, in which the parties stated that “[d]ue to the impacts 

of the COVID-19 pandemic and related anti-COVID-19 measures, the parties have not 

been able to conduct the discovery necessary to prepare for trial” and “[no] depositions 

have occurred in this case.” The parties jointly requested that the trial court postpone trial, 

which had been set for June 15, 2020, until “the fall of 2020 or winter of 2020/2021.” 

Andrade filed his motion to dismiss three months after the joint motion for continuance 

was filed. At that time, trial had been scheduled for February 2021, though it was later 

reset to September 2021.

At the hearing on the motion to dismiss in the trial court, Andrade’s counsel 

explained that he was not aware of the forum selection clause until 2020 because, though 

he has “a reasonable degree of Spanish fluency,” his knowledge did not rise “to the level 

of interpreting complex legal terms within a clause.” Thus, he only learned of the existence 

of the clause when Andrade’s Mexico-based counsel pointed it out. Logicorp emphasizes 

that, although Andrade’s counsel may not have known about the clause until 2020, 

Andrade knew or should have known about it because he was a signatory to the by-laws. 

We agree. Having signed the by-laws in his capacity as Logicorp’s co-founder and 
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shareholder, Andrade is charged with knowledge of its contents, including the forumselection clause. See Town N. Nat’l Bank v. Broaddus, 569 S.W.2d 489, 492 (Tex. 1978) 

(“[A] party to a written agreement . . . is charged as a matter of law with knowledge of its 

provisions . . . unless he can demonstrate that he was tricked into its execution.”).

Because Andrade constructively knew about the forum-selection clause and yet did not 

assert it for fifteen months after he was sued by Logicorp, consideration of this factor 

weighs strongly in favor of a finding of waiver.

We next consider how much discovery Andrade conducted before moving to 

dismiss, whether that discovery related to the merits, and whether the discovery 

conducted would be unavailable or useful in a different forum. See G.T. Leach Builders, 

LLC, 458 S.W.3d at 512.3 Affirmatively seeking some discovery is not alone sufficient to 

show a substantial invocation of the judicial process; rather, this factor contemplates an

inquiry into both the nature and quantity of the discovery at issue. See, e.g., Richmont 

Holdings, Inc., 455 S.W.3d at 576; Perry Homes, 258 S.W.3d at 596–97.

The record demonstrates that Andrade filed the following pleadings and other 

documents since the inception of the underlying case: (1) his original answer, filed March 

18, 2019; (2) his first amended answer, filed June 24, 2019; (3) the joint motion for 

continuance, filed May 1, 2020; (4) his motion to dismiss, filed August 18, 2020; and (5) 

3 We note that the discovery-related factors elucidated in Perry Homes and its progeny do not 

translate well from the arbitration context. See In re Boehme, 256 S.W.3d 878, 886 (Tex. App.—Houston 

[14th Dist.] 2008, orig. proceeding). As the Fourteenth District Court of Appeals observed:

One of the benefits of arbitration is that it severely limits pretrial discovery. In the arbitration 

context, then, engaging in significant discovery can be inconsistent with an eleventh-hour 

request for arbitration. That concern is not as pronounced when the clause in question is 

designed not to eliminate or lessen pretrial discovery but, rather, to simply specify the forum 

that would resolve the dispute.

Id. (finding that relator’s “action in participating in five depositions and exchanging documents is not 

inconsistent with then seeking to relocate the dispute” pursuant to a forum selection clause).
16

his reply to Logicorp’s response to his motion to dismiss, filed November 23, 2020. A 

docket sheet included in the clerk’s record shows that, prior to filing his motion to dismiss, 

Andrade also filed: (1) motions for summary judgment seeking dismissal of the claims 

made against him by Logicorp US and LCT; and (2) a motion to quash the notice of 

deposition of Anderson. There are no discovery requests or any other pleadings related 

to discovery in the record.

Logicorp argues that, in the time period between Andrade’s answer and his motion 

to dismiss, (1) “[t]here was a discovery battle over obtaining the [s]ubordination 

[a]greement,” (2) Andrade responded to written discovery, and (3) Andrade “agreed to 

depose” Anderson in Texas. It contends that “[a]ll discovery bore directly on the merits.” 

However, Andrade notes that the “discovery battle” at issue was between Logicorp, which 

sought disclosure of the subordination agreement, and Logicorp US, which resisted it. 

Andrade contends that he did not directly participate in the “battle,” nor did he “agree” to 

depose Anderson insofar as he moved to quash notice of the deposition. Although that is 

true, Logicorp benefitted from the trial court’s rulings compelling disclosure of the 

subordination agreement and permitting Anderson’s deposition, and Andrade remains a 

part owner of Logicorp US, which was a direct participant in the discovery “battle.” It is 

noteworthy that Andrade delayed invoking the forum selection clause until after the trial 

court compelled production of the subordination agreement, and mere days before 

Anderson’s deposition. We agree with Logicorp that this “suggests that Andrade decided 

to pull the plug because discovery was going badly for him.”

Finally, we consider whether Andrade asserted affirmative claims for relief, 

requested disposition of claims on the merits, or engaged in pretrial matters related to the 
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merits. See G.T. Leach Builders, LLC, 458 S.W.3d at 512. Logicorp notes that, in his 

discovery responses, Andrade designated his attorney as an expert witness and stated 

that he “expects to offer expert testimony” from the attorney “regarding fees incurred by 

Andrade.” However, the record shows that Andrade in fact made no affirmative claims for 

relief, against Logicorp or any other party, in his live pleading. But Andrade did move for 

summary judgment on the merits of Logicorp US and LCT’s claims, and “[s]ubstantially 

invoking the judicial process may occur when the party seeking arbitration actively has 

tried, but failed, to achieve a satisfactory result in litigation” before moving to dismiss. See

Bierscheid v. JPMorgan Chase Bank, 606 S.W.3d 493, 525 (Tex. App.—Houston [1st 

Dist.] 2020, pet. denied); Nw. Const. Co. v. Oak Partners, L.P., 248 S.W.3d 837, 848 

(Tex. App.—Fort Worth 2008, pet. denied); Southwind Grp., Inc. v. Landwehr, 188 S.W.3d 

730, 736 (Tex. App.—Eastland 2006, no pet.); see also In re Great Lakes Ins. SE, No. 

13-22-00124-CV, 2022 WL 3693534, at *7 (Tex. App.—Corpus Christi–Edinburg Aug. 25, 

2022, orig. proceeding) (mem. op.) (holding trial court did not err in finding forum selection 

clause was waived where relator “waited almost two years to file its motion to dismiss 

based on the forum selection clause, engaged in discovery on the merits, and most 

tellingly, sought and was denied summary judgment on the merits”).

Considering all of the “key” factors identified by the Texas Supreme Court, we 

conclude that Logicorp met its “heavy” burden to establish by “clear evidence” that

Andrade substantially invoked the judicial process. See In re Nationwide, 494 S.W.3d at 

712. 

3. Prejudice

For a party to waive a forum selection clause, the substantial invocation of the 
18

litigation process must have prejudiced the opposing party. Kennedy Hodges, 433 S.W.3d 

at 545.4 Accordingly, we next consider whether Logicorp has been prejudiced by 

Andrade’s actions. In this context, prejudice is “inherent unfairness in terms of delay, 

expense, or damage to a party’s legal position that occurs when the party’s opponent 

forces it to litigate an issue” and later seeks to dismiss the case. Id. (quoting Perry Homes, 

258 S.W.3d at 597); see G.T. Leach Builders, 458 S.W.3d at 515.

Here, Andrade waited more than fifteen months after litigation commenced to file 

his motion to dismiss. This substantial delay, coupled with the time and expenses incurred 

by Logicorp in litigation, prejudiced Logicorp. See Perry Homes, 258 S.W.3d at 597; Truly 

Nolen of Am., Inc. v. Martinez, 597 S.W.3d 15, 25–26 (Tex. App.—El Paso 2020, pet. 

denied). More significantly, however, “[w]hen a movant already has unsuccessfully sought 

a resolution on the merits, prejudice inheres in an attempt to start over in a different forum 

before a new decisionmaker.” Pounds, 592 S.W.3d at 558. Enforcing the forum selection 

clause at this point in the proceedings would allow Andrade to undo the trial court’s 

adverse discovery rulings and deprive Logicorp of these favorable results. Damage to a 

4 After this case was orally argued, the United States Supreme Court held in Morgan v. Sundance, 

Inc., that “prejudice is not a condition of finding that a party, by litigating too long, waived its right to stay 

litigation or compel arbitration under the [Federal Arbitration Act].” 142 S. Ct. 1708, 1714 (2022). The Court 

noted that “[o]utside the arbitration context, a federal court assessing waiver does not generally ask about 

prejudice,” and it reasoned that “the FAA’s ‘policy favoring arbitration’ does not authorize federal courts to 

invent special, arbitration-preferring procedural rules.” Id.

In a post-submission letter brief, Logicorp suggests that, in light of Morgan, “a good faith basis now 

exists to challenge whether waiver of a forum selection agreement, based on litigation conduct, should 

require substantial prejudice.” In response, Andrade argues that Morgan was “expressly limited” to the issue 

of “whether the FAA authorizes federal courts to create . . . an arbitration-specific procedural rule,” and it 

points out that “[i]t is incumbent upon the Texas Supreme Court, and not this Court, to decide what impact, 

if any, the Morgan decision has on the controlling Texas Supreme Court cases requiring prejudice to find 

waiver of a forum-[s]election clause.”

We assume for purposes of this opinion, but do not decide, that Morgan did not abrogate the rule 

in Texas that a party waives enforcement of a forum selection clause only if the opposing party suffers 

prejudice.
19

party’s legal position suffices to show detriment or prejudice in the context of waiver of 

the right to arbitrate. See Kennedy Hodges, 433 S.W.3d at 545; Pounds, 592 S.W.3d at 

558; Hogg v. Lynch, Chappell & Alsup, P.C., 480 S.W.3d 767, 794–96 (Tex. App.—El 

Paso 2015, no pet.); see also In re Great Lakes Ins. SE, 2022 WL 3693534, at *7.

We conclude that Andrade substantially invoked the litigation process to Logicorp’s 

prejudice. See LaLonde, 593 S.W.3d at 220. Accordingly, Andrade waived enforcement 

of the forum selection clause, and the trial court erred by granting Andrade’s motion to 

dismiss. Logicorp’s second issue is sustained.5

IV. CONCLUSION

The trial court’s judgment is reversed. We remand with instructions to deny 

Andrade’s motion to dismiss and for further proceedings consistent with this opinion.

DORI CONTRERAS

Chief Justice

Delivered and filed on the

1st day of December, 2022.

5 In light of our ruling, we need not address Logicorp’s third issue, by which it argues that 

enforcement of the forum selection clause would be unreasonable and unjust because Monterrey is a 

seriously inconvenient forum for trial. See TEX. R. APP. P. 47.1.