DENY and Opinion Filed February 23, 2022

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05
- 21
- 00358
- CV IN RE AM RE SYNDICATE, INC. AND SHEVAWN BARDER , Relators Original proceeding from the County Court at Law No. 4

Dallas County, Texas Trial Court Cause No. CC
- 21
- 00683
- D MEMORANDUM OPINION Before Justices Myers, Partida

- Kipness, and Carlyle

Opinion by Justice Myers Relators Am Re Syndicate, Inc. and Shevawn Barder petition this Court for a writ of mandamus ordering t he trial court to grant relators’ motion to dismiss this cause because, they contend, a forum

- or venue - selection clause in a contract requires venue for the underlying lawsuit in Oklahoma County, Oklahoma. We have reviewed the petition for writ of mandam us, the response of the real party in interest, and the record presented by the parties. We deny the petition for writ of mandamus. Mandamus relief is available to enforce forum

- selection agreements because there is no adequate remedy by appeal when a tri al 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– 2

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curiam) . We review the trial court’s decision whether t o enforce a forum

- selection clause for an abuse of discretion, deferring to the trial court’s factual determinations if they are supported by the evidence, but we review the trial court’s 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. Moki Mac River Expedi tions v. Drugg , 221 S.W.3d 569, 574 (Tex. 2007). Real party in interest sued relators alleging relators breach ed a contract, committed fraud because they entered into the contract with n o intent to perform, tortious interference with contract, and that relators conspired to commit those torts. The contract real party alleged relators breached contained a forum

- or venue selection clause stating : This Agreement has been made and entered into in the State of O klahoma and the Agreement shall be subject to and construed under the laws of the State of Oklahoma. This agreement shall be deemed performable at the Company’s administrative office in Oklahoma City, Oklahoma, and it is agreed that the venue of any controversy arising out of this Agreement, or any breach thereof, shall be in Oklahoma County, Oklahoma. (Emphasis added.) Relators moved to dismiss the suit, arguing exclusive venue for the suit la y in Oklahoma because the controversy arose out of that contract

. Relators were not parties to the c ontract, but Am Re was the agent of one of the parties, GIC, Inc., and Barder was the CEO of Am Re. Relators argued that because real party sued them– 3

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for breach of contract and for fraud based on having no inte nt to perform the contract, the controversy arose out of the contract, and real party was estopped to deny that relators were parties to the contract. Real party argued that the controversy did not arise out of the contract, that relators lacked capacity and standing to assert the forum

- or venue - selection clause, and that the clause was not enforceable because it was not mandatory. The trial court denied relators’ motion to dismiss, and relators brought this petition for writ of mandamus. While the petit ion for writ of mandamus was pending in this Court, real party filed its second amended petition in the trial court . The second amended petition no longer alleges breach of contract or fraud. Instead, it alleges relators committed misappropriation of trade secrets, tortiously interfered with contracts and business relations by driving away real party’s customers and by telling rea l party’s customers to cancel or not renew their policies, and conspir ed to commit those torts. Additionally, Am Re’s principal , GIC, Inc., who i s a party under the contract, revoked Am Re’s agency authority. Real party filed a motion in the trial court requesting that relators be compelled to show authority to represent GIC, Inc. The trial court granted that motion and ruled, “AM RE has no authority or capacity to act for GIC as of November 18, 2021.” Real party argues th at under the second amended pe tition, the controversy does not arise out of the contract and relators have no standing to assert the forum

- or venue - selection clause in the contract.– 4

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We a gree with real party that the controversy does not arise out of the contract and that relators la ck capacity and standing to assert the forum

- or venue - selection clause

. We deny the petition for writ of mandamus.

210358f.p05 /Lana Myers/ LANA MYERS JUSTICE