Affirmed and Opinion filed September 18, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00171-CV

TAKAFUMI HORIE, Appellant 

V.

THE LAW OFFICES OF ART DULA, ARTHUR M. DULA, 

INDIVIDUALLY AND D/B/A THE LAW OFFICES OF ART DULA, ANAT 

FRIEDMAN, INDIVIDUALLY AND D/B/A THE LAW OFFICES OF ART 

DULA, J. BUCKNER HIGHTOWER, AND THE ROBERT A. AND 

VIRGINIA HEINLEIN PRIZE TRUST, THROUGH ITS TRUSTEES 

ARTHUR M. DULA AND J. BUCKNER HIGHTOWER, Appellees 

On Appeal from the 55th District Court 

Harris County, Texas 

Trial Court Cause No. 2014-65947 

O P I N I O N 

This is an appeal from a summary judgment dismissing a case due to a forumselection clause providing for exclusive jurisdiction in the courts of the Isle of Man. 

The primary argument presented is that the forum-selection clause does not apply 
2

because the parties seeking to enforce it either are not signatories or signed in a 

capacity different from the capacity in which they were sued. Under the plain 

language and defined terms of the contract, however, the forum-selection clause 

applies to the claims against these individuals regardless of capacity. Because the 

claims are within the scope of the valid forum-selection clause, and because its 

enforcement would not be unreasonable, unjust, contrary to a strong public policy 

of Texas, or seriously inconvenient for trial, we affirm the trial court’s judgment. 

I. BACKGROUND

 Appellant Takafumi Horie, who resides in Japan, is the billionaire founder of 

internet service provider LDH, Inc.1 Appellee Arthur Dula is a Houston attorney 

who teaches “space law” and who is the sole proprietor of The Law Office of Art 

Dula. Dula’s law firm employs appellee Anat Friedman, who also is an attorney. 

Dula and appellee J. Buckner Hightower additionally are co-trustees of The Robert 

A. and Virginia Heinlein Prize Trust. We refer to Dula, Friedman, and Hightower, 

individually and in each of these capacities, collectively as “the Dula Parties.” 

A. The Space-Tourism Business 

 Pursuant to an agreement with Russian company NPO Machinostroenia 

(“NPOM”), Dula had the exclusive right to market Almaz space capsules and a 

Salyut space station. Together with Hiroshi “Hank” Yoshida of the Japanese 

company Astro Research Corporation (“Astro”), Dula met with Horie and LDH’s 

vice president Noriaki Okubo to determine if Horie would be interested in a spacetourism business. Dula, Horie, and Okubo met in Japan in April 2005 and met with 

officials in Russia in June 2005 about the business. 

 

1

 The company was previously known at various times as Livin’ on the Edge; Livin’ on the Edge 

Co., Ltd.; Edge Co., Ltd.; and Livedoor Co. Ltd. For clarity, we refer to it only as LDH. 
3

 Around the time of the meeting with Russian officials, Excalibur Almaz Ltd. 

(“Excalibur) was organized under the laws of the Isle of Man. Dula was Excalibur’s 

chief executive officer, and he assigned his rights under the contracts with NPOM 

to Excalibur. The space-tourism business was to be conducted through Excalibur. 

B. The Memorandum of Understanding 

 Horie’s investment in the space-tourism business began when Dula presented 

Horie with (1) a private placement memorandum and (2) a memorandum of 

understanding (“the MOU”) in October 2005. Under the MOU, Horie d/b/a Japan 

Space Dream would purchase 75% of Excalibur’s shares for $49,003,000.00, 

payable in three tranches of $16,334,333.34 each. The initial payment was to be 

held in trust until, among other things, Excalibur’s board elected two board members 

selected by Horie and accepted Horie’s application for shares. Excalibur elected 

Horie and Okobo at Horie’s request, and Horie became Excalibur’s majority 

shareholder before the end of 2005. 

C. The Side Agreement 

 Before Horie’s second payment was due in January 2006, Horie was arrested 

in Japan for securities fraud. Under Horie’s agreements with Excalibur, Excalibur 

could declare Horie’s shares forfeit for his failure to make the required payments. 

Instead, Horie and Excalibur executed a “Side Agreement” that modified the MOU. 

Under the Side Agreement, Horie’s ownership interest in Excalibur was reduced to 

34% and Horie agreed to place his shares under the control of a third-party trustee 

acceptable to both Horie and Excalibur. The parties agreed that Okubo would be 

made “veto director” with the power to veto certain actions. The Side Agreement 

also specified that it and the original MOU were governed by Manx law and all 

differences arising out of the Side Agreement or the original MOU would be 

submitted to binding arbitration in the Isle of Man. 
4

 In fulfillment of the Side Agreement, Horie’s shares, which had been held by 

an attorney in Japan, were transferred to a trust for which George Abbey served as 

trustee. Horie eventually made the required payments for his shares. 

D. The Deed 

 Horie also had been sued by LDH, and claims among Horie, Abbey, LDH, 

and Excalibur were resolved in June 2010 in a settlement agreement referred to as 

“the Deed.” The Deed recites that Horie had agreed to subscribe for, and Excalibur 

had agreed to issue to Horie, 3,600 shares in Excalibur; that the Side Agreement 

settled some disputes, amended the MOU, and required Horie’s shares to be put into 

a trust; that the shares were put into the trust with Abbey; and that Horie had assigned 

to LDH the right to instruct Abbey regarding those shares. In the Deed, the parties 

further agreed that LDH would instruct Abbey to consent to the redemption of the 

shares by Excalibur; that Excalibur would pay the redemption proceeds directly to 

LDH; and LDH’s receipt of the funds would terminate the MOU, the Side 

Agreement, and the trust. The Deed’s signatories included Horie in his individual 

capacity and Dula and Hightower as directors of Excalibur. 

E. The Lawsuit 

 After the Deed was performed, Horie sued the Dula Parties for breach of trust, 

constructive trust, resulting trust, fraud, statutory fraud, breach of fiduciary duty, 

monies had and received, and negligence. He alleged that Dula was his attorney and 

that Dula used the funds Horie invested in Excalibur to purchase four Almaz 

spacecraft capsules and two space stations from NPOM without disclosing that the 

purchase contract prohibited any modification of the hardware. As a result, the 

spacecraft could not be modified to be returned to flight. Horie sought an

accounting, damages or rescission in the amount of his $49,003,000.00 original 

investment, punitive damages, and attorney’s fees. 
5

 The Dula Parties moved to dismiss the suit based on a forum-selection clause 

in the Deed, which provides that “the Courts of the Isle of Man shall have exclusive 

jurisdiction in relation to any dispute or claim arising out of or in connection with 

this Deed or its subject matter, existence, negotiation, validity, termination or 

enforceability (including non-contractual disputes or claims).” The trial court 

initially denied the motion to dismiss, and we denied the Dula Parties’ petition for 

writ of mandamus. See In re Law Offices of Art Dula, No. 14-15-00535-CV, 2015 

WL 5825407 (Tex. App.—Houston [14th Dist.] Oct. 6, 2015, [mand. denied]) (per 

curiam) (mem. op.). In the meantime, the Dula Parties and others sued Horie in the 

Isle of Man.

 After the unsuccessful mandamus proceeding, the Dula Parties again sought 

to enforce the forum-selection clause in the Texas district court, this time through a 

motion for summary judgment. In the same motion, and “to the extent necessary for 

enforcement” of the forum-selection clause, the Dula Parties also asked for an order 

finding that no attorney-client relationship ever existed between Horie and Dula. 

The trial court granted the motion without making the requested finding and 

dismissed the case without prejudice. Horie appeals.2

II. STANDARD AND SCOPE OF REVIEW

 In two issues and nine sub-issues, most of which overlap to some degree, 

Horie argues that the trial court erred in granting the traditional motion for summary 

judgment dismissing the case without prejudice based on the forum-selection clause. 

 To prevail on a traditional motion for summary judgment, the movant must 

show that there is no genuine issue of material fact and that it is entitled to judgment 

 

2

 During the pendency of this appeal, Horie also unsuccessfully sought a writ of prohibition to 

prevent the Dula Parties from taking steps to deprive this court of jurisdiction. See In re Takafumi 

Horie, No. 14-17-00943-CV, 2017 WL 6552100, at *1 (Tex. App.—Houston [14th Dist.] Dec. 21, 

2017, orig. proceeding) (per curiam) (mem. op.). 
6

as a matter of law. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 

215–16 (Tex. 2003). We review a summary judgment de novo, construing the 

evidence in the light most favorable to the non-movant by crediting evidence 

favorable to the non-movant if a reasonable juror could and disregarding contrary 

evidence unless a reasonable juror could not. Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). To the extent we must 

review an unambiguous contract, we apply the de novo standard of review to that 

inquiry as well. Id. 

A. We Do Not Consider the Dula Parties’ Reply Evidence or Horie’s 

Surreply. 

 Because both sides also attempt to rely on material that we are not permitted 

to consider, we also clarify the scope of review. Except on leave of court, the 

movant’s summary-judgment motion and evidence must be filed and served at least 

twenty-one days before the hearing, and the respondent’s response and evidence 

must be filed and served seven days before the hearing. TEX. R. CIV. P. 166a(c). 

The Dula Parties filed a reply with supporting evidence three days before the 

hearing. Because the record does not show that the evidence attached to the reply 

was filed with leave of court, we do not consider it. See Benchmark Bank v. 

Crowder, 919 S.W.2d 657, 663 (Tex. 1996); Tex. Windstorm Ins. Ass’n v. Dickinson 

Indep. Sch. Dist., No. 14-16-00474-CV, __S.W.3d__, 2018 WL 2436924, at *6 

(Tex. App.—Houston [14th Dist.] May 31, 2018, no pet.). For the same reason, we 

do not consider Horie’s surreply and its attached evidence, which were filed nine 

days after the motion was submitted. See Conte v. Ditta, No. 14-02-00482-CV, 2003 

WL 21191296, at *3–4 (Tex. App.—Houston [14th Dist.] May 22, 2003, no pet.) 

(mem. op.). 
7

B. We Do Not Consider Horie’s Second Amended Petition.

Texas Rule of Civil Procedure 166a(c) requires the trial court to consider the 

pleadings “on file at the time of the hearing, or filed thereafter and before judgment 

with permission of the court.” TEX. R. CIV. P. 166a(c). But, Texas Rule of Civil 

Procedure 63 requires a party to obtain leave of court to amend its pleading within 

seven days of the trial or thereafter. See TEX. R. CIV. P. 63. This rule applies to 

summary-judgment proceedings because they are trials within the meaning of this 

rule. See Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d 487, 490 (Tex. 1988). 

Thus, Rule 63 requires a party to obtain leave of court to amend its pleading within 

seven days of the summary-judgment hearing or thereafter. See id. Leave must be 

granted unless it is shown that the filing will operate as a surprise to the opposing 

party. See id. If the amended pleading is filed before a summary-judgment hearing 

but within the seven-day window, the appellate court will presume that the trial court 

granted leave for the amendment and that the trial court considered this pleading if 

(1) the record is silent of any basis to conclude that the trial court did not consider 

the amended pleading, and (2) the opposing party has not shown surprise or 

prejudice. See id.; Thomas v. Allstate Ins. Co., No. 14-05-00293-CV, 2006 WL 

2290840, at *2 n.3 (Tex. App.—Houston [14th Dist.] Aug. 10, 2006, no pet.) (mem. 

op.). But, this presumption does not apply if the pleading is amended after the 

hearing. See Mensa-Wilmot v. Smith Int’l, Inc., 312 S.W.3d 771, 778–79 (Tex. 

App.—Houston [1st Dist.] 2009, no pet.); Taylor v. Sunbelt Mgmt., Inc., 905 S.W.2d 

743, 745 (Tex. App.—Houston [14th Dist.] 1995, no writ). 

 Here, Horie filed his second amended original petition more than two weeks 

after the summary-judgment hearing, and the record does not indicate that the trial 

court granted leave for the amendment or considered the amended pleading. To the 

contrary, the trial court stated in the judgment, “The claims asserted by Plaintiff in 
8

the First Amended Petition fall within the scope of the forum[-]selection clause.” 

We accordingly do not consider the later pleading. 

C. We Do Not Consider Evidence That is Not Part of the SummaryJudgment Record.

 Finally, each side has included material in the appendix to its appellate brief 

that is not part of the summary-judgment record presented to the trial court. We 

exclude this material from our consideration as well, and we do not address the 

arguments that are dependent on such material for support. See Fryday v. 

Michaelski, 541 S.W.3d 345, 352 (Tex. App.—Houston [14th Dist.] 2017, pet. 

denied). 

III. THE FORUM-SELECTION CLAUSE

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

Corp., 307 S.W.3d 314, 316 (Tex. 2010) (per curiam) (orig. proceeding). When 

deciding whether a forum-selection clause applies, a court performs “a commonsense examination of the claims and the forum-selection clause to determine if the 

clause covers the claim.” In re Lisa Laser USA, Inc., 310 S.W.3d 880, 884 (Tex. 

2010) (per curiam) (orig. proceeding) (quoting In re Int’l Profit Assocs., Inc., 274 

S.W.3d 672, 677 (Tex. 2009) (per curiam) (orig. proceeding)). If the clause covers 

the claim, then the clause generally will be enforced unless it is invalid due to fraud 

or overreaching, or unless (a) enforcement would be unreasonable or unjust,

(b) enforcement would contravene a strong public policy of the forum where the suit 

was brought, or (c) the selected forum would be seriously inconvenient for trial. See 

Laibe, 307 S.W.3d at 316.
9

A. The Clause Applies to Horie’s Claims. 

 To determine whether a forum-selection clause applies, we begin with its 

language. Pinto Tech. Ventures, L.P. v. Sheldon, 526 S.W.3d 428, 437 (Tex. 2017). 

The Deed’s forum-selection clause states, 

Each Party irrevocably agrees that the Courts of the Isle of Man shall 

have exclusive jurisdiction in relation to any dispute or claim arising 

out of or in connection with this Deed or its subject matter, existence, 

negotiation, validity, termination or enforceability (including noncontractual disputes or claims).3

To determine whether the forum-selection clause applies to the claims in this case, 

we must identify the Deed’s subject matter. 

 Among other things, the Deed dealt with “any Claims” by Horie or Japan 

Space Dream against members of the “Company Group.” The “Company Group” 

was defined to mean Excalibur and “its Affiliates, shareholders, subsidiaries, 

employees, officers, directors, trustees, assigns, transferees, representatives, 

principals and agents,” both individually and collectively. The “Company Group” 

includes its directors Dula and Hightower, each of whom signed the Deed in his

capacity as a director of Excalibur. 

 The Deed defines “Claim” to mean 

a claim, potential claim, counterclaim, potential counterclaim, right of 

set-off, indemnity, liability, cause of action, right or interest of any kind 

or nature whatsoever, whether known or unknown, suspected or 

unsuspected, contingent or actual, however and whenever arising and 

in whatever capacity and jurisdiction . . . .4

 The claims that are the subject matter of the Deed are not limited to claims 

against Dula and Hightower in their capacities as Excalibur’s directors, because 

 

3 Emphasis added. 

4 Emphasis added. 
10

“claim” is defined to include claims “of any kind” and “in whatever capacity.” 

“Whatever” is a relative pronoun and determiner “used to emphasize a lack of 

restriction in referring to any thing or amount no matter what.” NEW OXFORD 

AMERICAN DICTIONARY 1965 (Angus Stevenson & Christine Lindberg eds., 3d ed. 

2010). Thus, the subject matter of the Deed includes any claims by Horie against 

Dula and Hightower, regardless of the nature of the claim or the capacity in which 

they could be sued.5

 Because Horie’s claims in this case are all “in connection” with the Deed’s 

subject matter, we conclude that the forum-selection clause applies. 

1. Horie’s counterarguments based on the Deed’s language 

 According to Horie, his claims are not governed by the forum-selection clause 

because the claims do not “arise from” the deed. The Deed, however, includes 

claims “in connection with” the Deed’s subject matter, and Horie concedes that 

“connected to” is construed broadly.6 See In re NEXT Fin. Grp., Inc., 271 S.W.3d 

263, 268 (Tex. 2008) (per curiam) (orig. proceeding); see also Branch Law Firm 

L.L.P. v. Osborn, 532 S.W.3d 1, 19–20 (Tex. App.—Houston [14th Dist.] 2016, pet. 

denied) (explaining that “arising out of or in connection with” is “broad language 

evidenc[ing] the parties’ intent to be inclusive rather than exclusive”).

 

5

 Horie does not distinguish between his claims against Dula and Hightower, on one hand, and his 

claims against Friedman, on the other; thus, we are not specifically called upon to address the 

claims against Friedman separately. Nevertheless, we note that the Deed defines “Affiliate” to 

include “any other person which directly or indirectly Controls, is Controlled by, or is under direct 

or indirect common control with [Excalibur] from time to time.” Friedman is alleged to be an 

attorney at Dula’s law firm, which is a sole proprietorship. Because Dula directly or indirectly 

controls both Excalibur and his law firm’s employees—including Friedman—Friedman is an 

“Affiliate.” As such, claims against her are claims against a member of the “Company Group” for 

the purpose of the forum-selection clause.

6 Horie also asserts that he, Horie, has no enforceable rights under the Deed, under which he 

received nothing. But, under the Deed, Horie obtained releases and the termination of the MOU 

and Side Agreement, among other things. 
11

 He also maintains that the claims do not fall within the scope of the Deed

because it was signed by Dula and Hightower in capacities other than those under 

which they are sued, but as we have just seen, the subject-matter of the Deed includes 

Horie’s claims brought against Dula and Hightower in any capacity. Horie similarly 

points out that the Dula Parties are not named in the Deed; however, Excalibur is 

named in the Deed, and the Dula Parties fall within the definitions of “Company 

Group.”

 Horie further asserts that the Dula Parties did not argue that the “Law Office 

of Art Dula” or the “Robert A. and Virginia Heinlein Prize Trust” are related to the 

signatories. No such argument was necessary, because the law firm and the Heinlein 

Trust are not parties to this action. Horie alleged that Dula does business as “the 

Law Office of Art Dula,” but the assumed name of a sole proprietorship is not a 

separate legal entity or even a different capacity of the individual sole proprietor. 

See TEX. R. CIV. P. 28; CA Partners v. Spears, 274 S.W.3d 51, 70 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied). A trust also is not a legal entity, and a suit 

against it must be brought against the trustee. Ray Malooly Tr. v. Juhl, 186 S.W.3d 

568, 570 (Tex. 2006) (per curiam).

The parties to the suit are four individuals: Horie, as the plaintiff, and the 

defendants Dula, Hightower, and Friedman. Horie sued Dula and Hightower in both 

their individual capacities and in their representative capacities as trustees of the 

Heinlein Trust. Because the forum-selection clause applies to Horie’s claims against 

Dula and Hightower “in whatever capacity,” it applies to Horie’s claims against 

them as trustees. 
12

2. Horie’s counterarguments based on alleged questions of fact 

 Most of Horie’s brief is dedicated to the argument that the Dula Parties failed 

to conclusively establish that Dula was never his attorney. We conclude that this is 

not a genuine issue of material fact. 

A fact is “material” if it affects the ultimate outcome of the lawsuit under the 

governing law. Pierce v. Wash. Mut. Bank, 226 S.W.3d 711, 714 (Tex. App.—Tyler 

2007, pet. denied), abrogated on other grounds by Lujan v. Navistar, No. 16-0588, 

__S.W.3d__, 2018 WL 1974473, at *5 (Tex. Apr. 27, 2018); Rayon v. Energy 

Specialties, Inc., 121 S.W.3d 7, 11 (Tex. App.—Fort Worth 2002, no pet.); 

Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 433 (Tex. App.—Houston [14th 

Dist.] 1999, no pet.). As we have seen, the subject-matter of the Deed were the 

“Claims” against the “Company Group.” The Company Group includes the Dula

Parties, and “Claims” include all claims of “any kind or nature whatsoever,” 

“whenever arising and in whatever capacity.” Thus, the claims to which the forumselection clause applies include claims against the Dula Parties as attorneys and 

trustees. Whether Dula was Horie’s attorney and when the relationship, if any, 

ended, remain for litigation between the parties. 

B. The Forum-Selection Clause Is Not Claimed to be the Result of Fraud or 

Overreaching. 

 Horie did not argue at trial, nor does he argue on appeal, that the Deed or its 

forum-selection clause was the result of fraud or overreaching. 

C. Enforcement Would Not Be Unreasonable or Unjust. 

 Horie contends that enforcement of the forum-selection clause would be 

unreasonable or unjust because virtually all of the witnesses are located in Texas and 

that Dula performed most of the work at issue in Texas. Horie does not identify 

these witnesses and he produced no evidence in support of this contention. Cf. In re 
13

ADM Investor Servs., Inc., 304 S.W.3d 371, 375 (Tex. 2010) (orig. proceeding) 

(holding conclusory statements insufficient to establish inconvenience). Dula and 

Hightower reside in Texas, but both are directors of a company organized under the 

laws of the Isle of Man and located in the Isle of Man. Horie and Okubo are residents 

of Japan, and Yoshida works for a Japanese company. The other companies 

involved in the case are two Japanese companies (LDH and Astro) and a Russian 

company (NPOM). Finally, the various attorneys that Dula contends represent Horie

maintain offices in Japan and in California. The location of all of these witnesses 

were known to Horie when he signed the Deed containing the forum-selection 

clause. 

 Horie similarly asserts that the suit will be governed by Texas law, but that, 

too, is far from clear. The Deed, the Side Agreement, and the MOU (as amended by 

the Side Agreement) all contain provisions requiring the application of Manx law. 

Significantly, the question of whether Horie’s claims have been released will be 

decided under the laws of the Isle of Man. This opinion does not control that issue. 

 Horie additionally maintains that the application of a forum-selection clause 

specifying a jurisdiction outside Texas is unreasonable or invalid as applied to claims 

against a Texas attorney. In support of this position, he cites Keck, Mahin & Cate 

v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 699 (Tex. 2000), in 

which the Supreme Court of Texas stated, “Contracts between attorneys and their 

clients negotiated during the existence of the attorney-client relationship are closely 

scrutinized” because “there is a presumption of unfairness and invalidity attaching 

to such contracts.” 

 As the Dula Parties have pointed out, there is no affirmative evidence that 

Dula was Horie’s attorney in 2010. Although Horie and Okubo swore that Dula 

performed legal work for Horie as late as 2008, when the Side Agreement was 
14

executed, they did not contend that Dula represented Horie in connection with the 

later negotiation and execution of the 2010 Deed. Dula attested that Horie was 

represented in connection with the Deed by Mikio Tanaka, an attorney with CityYuwa Partners in Tokyo, and Horie does not dispute this evidence. Nevertheless, 

there is some evidence that Dula represented Horie at an earlier date and no evidence 

that Dula terminated the relationship before the Deed was executed. Because we 

construe the evidence in Horie’s favor unless reasonable jurors could not, we 

assume, without deciding, that Dula and Horie continued to have an attorney-client 

relationship of some sort in 2010, even though the relationship did not extend to 

representing Horie in connection with the Deed. We accordingly scrutinize the 

forum-selection clause closely. 

 An attorney may enter into a fair and valid contract with a client. For example, 

the Texas Disciplinary Rules of Professional Conduct permit an attorney to enter 

into a business transaction with a client if (1) the terms are fair, reasonable, and fully 

disclosed in a manner that can be reasonably understood by the client; (2) the client 

has a reasonable opportunity to seek the advice of independent counsel; and (3) the 

client consents in writing. TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.08(a).7 

Here, the parties’ business dealings and the alleged attorney-client relationship 

focused almost entirely on establishing Excalibur as a space-tourism business, and 

the forum-selection clause calls for claims to be litigated in the forum where 

Excalibur was created and has its principal place of business. The forum-selection 

clause is unambiguous, as is the definition of the “claims” to which it applies. The 

 

7

See Hogg v. Lynch, Chappell & Alsup, P.C., No. 08-16-00305-CV, –S.W.3d–, 2018 WL 

2077668, at *12 (Tex. App.—El Paso May 4, 2018, no pet.) (consulting the Texas Disciplinary 

Rules of Professional Conduct when determining whether a fee agreement was reasonable because 

the Rules help a court to “discern the policies and protections embodied in them as an aid in 

deciding questions of attorney civil liability” (quoting Gillespie v. Hernden, 516 S.W.3d 541, 547 

(Tex. App.—San Antonio 2016, pet. denied))).
15

Deed’s recitals show that it was negotiated for over six months, and it is undisputed 

that Horie was represented in this matter by independent counsel. Cf. id., cmt. 2 

(recommending that attorney-client business transactions be reviewed by 

independent counsel). Horie is a sophisticated businessman, and in signing the 

Deed, Horie expressly acknowledged that its terms had been negotiated on an arm’slength basis; that he had full opportunity to have his independent counsel explain the 

Deed’s terms and effect; and that he entered into the Deed “freely, knowingly and 

voluntarily, free from duress of any kind.” Cf. id. Rule 1.04, cmt. 8 (contract 

“negotiated at arm’s-length with an experienced business client would rarely be 

subject to question”). Horie does not argue that the forum-selection clause was the 

product of fraud or overreaching. See In re Lyon Fin. Servs., Inc., 257 S.W.3d 228, 

232 (Tex. 2008) (per curiam) (orig. proceeding) (explaining that even fraudulent 

inducement will not bar enforcement of an arbitration or forum-selection clause 

“unless the specific clause was the product of fraud or coercion” (citing In re 

Prudential Ins. Co. of Am., 148 S.W.3d 124, 134–35 (Tex. 2004) (orig. proceeding)); 

In re Longoria, 470 S.W.3d 616, 630 (Tex. App.—Houston [14th Dist.] 2015, orig. 

proceeding) (“The fraud or overreaching in question must involve the negotiation of 

the forum-selection clause itself.” (citing Young v. Valt.X Holdings, Inc., 336 S.W.3d 

258, 266–67 (Tex. App.—Austin 2010, pet. dism’d)). Under these circumstances, 

the forum-selection clause and its enforcement are not unreasonable, unfair, or 

invalid. Cf. Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 

244, 265 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (fee agreement not 

unfair where client was sophisticated, terms were understood, and agreement was 

negotiated at arm’s length through independent counsel). 

 In support of his assertion to the contrary, Horie also cites Falk & Fish, L.L.P. 

v. Pinkston’s Lawnmower & Equip., Inc., 317 S.W.3d 523, 529 (Tex. App.—Dallas 
16

2010, no pet.). The case does not support Horie’s position. In Falk & Fish, an 

attorney licensed in both Texas and North Carolina traveled to North Carolina where 

the attorney agreed to represent a small North Carolina company in a North Carolina 

court. Id. at 525. Six months later, the attorney gave the company the representation 

agreement he had drafted. Id. at 528. The agreement contained the clause, “the 

applicable courts of Dallas, Texas shall be the for a [sic] for all attorney-client 

disputes.” Id. at 525. The Falk & Fish court stated that the company president who 

signed the agreement was not a “sophisticated and experienced client” and that there 

was no evidence that the agreement was negotiated. Id. at 529. Under those 

circumstances, the court held that the attorney had the burden to ensure that “the 

contract clearly stated any terms that diverged from [the client’s] expectations.” Id. 

The court reasoned that due to a typographical error, the forum-selection clause was 

not “clear and unequivocal.” Id. at 528. Because the attorney failed in his burden 

to clearly state that claims against him would be resolved in a Texas forum, the court 

held both that the clause was unenforceable and that enforcement would be 

unreasonable and unjust. 

 The facts in this case cannot be compared to those in Falk & Fish. Whereas

the client in Falk & Fish was unsophisticated and inexperienced, the client in this 

case is a sophisticated entrepreneur. The contract in Falk & Fish was not negotiated; 

the contract in this case was negotiated for over six months. The client in Falk & 

Fish was not represented by independent counsel; Horie was. And, whereas the 

forum-selection clause in Falk & Fish omitted the word “forum,” the forumselection clause in this case plainly states exactly what it means. 

 Even under close scrutiny, the evidence establishes that the forum-selection 

clause’s terms and enforcement are fair, reasonable, and just. 
17

D. Enforcement Does Not Contravene a Strong Public Policy of Texas. 

 Horie avers that Texas has a strong public policy of protecting the public from 

attorneys who improperly receive client funds. In support of this argument, he cites 

First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214 (Tex. 

2017). Horie does not, however, explain why Parker mandates reversal in this 

instance. 

 In Parker, the Supreme Court of Texas stated that the elements of a breachof-fiduciary-duty claim generally are (1) the existence of a fiduciary duty, (2) breach 

of the duty, (3) causation, and (4) damages. Id. at 220. The court then explained 

that in a client’s breach-of-fiduciary-duty claim against its attorney, the client 

nevertheless can obtain the equitable remedy of fee forfeiture without showing that 

the attorney’s breach caused the client damages. See id. at 221. Because Horie had 

not sought fee forfeiture before the motion for summary judgment was submitted—

and because the Dula Parties did not seek summary judgment on liability in any 

event—Parker does not affect our analysis of the forum-selection clause’s 

enforceability. Enforcing the forum-selection clause is not counter to the public 

policy of Texas.

Horie also asserts that the forum-selection clause cannot be enforced “because 

the court would have to treat the Deed as an agreement between Horie and his 

attorney. Such agreements to choose another forum, especially in a foreign country 

thousands of miles away, are presumptively invalid.” We already have discussed 

Horie’s argument that the forum-selection clause is unfair, unreasonable, or invalid, 

and this argument fails for the same reasons. Moreover, Horie’s assertion that the 

forum-selection clause requires litigation “in a foreign country thousands of miles 

away” raises the question, “away from where?” Presumably, Horie is referring to 

the distance from Japan, where he resides and where his relationship with Dula 
18

began. While it is true that the courts of the Isle of Man are thousands of miles away 

from Japan, so are the courts of Houston, Texas. Just as Horie voluntarily chose to 

litigate in Houston, Texas despite the distance, so too did he voluntarily agree to 

litigation in the Isle of Man. 

 Under the same heading, Horie asserts that the forum-selection clause “is 

effectively a prospective limitation on a lawyer’s fiduciary liability.” Here, too, 

Horie does not explain his reasoning. We presume that the substantive laws of the 

Isle of Man are the same as those of Texas,

8

and thus, that a claim for breach of 

fiduciary duty is a cognizable claim on the Isle of Man as it is in Texas. The forumselection clause does not purport to limit liability for breach of fiduciary duty—and 

it certainly does not do so prospectively. By the time Horie executed the Deed, he 

had agreed to purchase 75% of the stock in Excalibur for $49,003,000.00; to place 

the shares in a trust; and to grant LDH the power to control the trust. With the 

execution of the Deed, Horie agreed that Excalibur would redeem Horie’s shares and 

pay the redemption price directly to LDH, and that the MOU, the Side Agreement, 

and the trust would terminate. Thus, the execution of the Deed ended Horie’s 

interest in Excalibur without the return of his investment. Because the conduct 

forming the basis of Horie’s complaints occurred upon or before the Deed’s 

execution, any limitation of liability would not be “prospective.” 

E. The Isle of Man Is Not Seriously Inconvenient for Trial. 

Horie’s public-policy arguments also could be considered as arguments that 

the Isle of Man is seriously inconvenient for trial. Nevertheless, the inconvenience 

of litigating in the Isle of Man was foreseeable when Horie entered into the Deed

containing the forum-selection clause. See In re AIU Ins. Co., 148 S.W.3d 109, 111–

 

8

See Brown v. Lanier Worldwide, Inc., 124 S.W.3d 883, 894 n.20 (Tex. App.—Houston [14th 

Dist.] 2004, no pet.). 
19

13 (Tex. 2004) (orig. proceeding). Despite this foreseeability, Horie acknowledged 

that he knowingly and voluntarily agreed to the Deed’s terms. We accordingly find 

these arguments to be without merit.

IV. HORIE’S REMAINING ARGUMENTS

Because Horie’s remaining arguments do not readily fit into the framework 

for analyzing the applicability of a forum-selection clause, we address each of them 

separately. 

A. Arguments About the Appropriate Disposition 

 Horie asserts that if the Dula Parties’ summary-judgment evidence was 

insufficient, then the trial court should have denied the motion rather than dismissing 

the case without prejudice. Because we hold that the Dula Parties’ evidence 

established that Horie’s claims against them fall within the scope of the Deed’s fair 

and valid forum-selection clause, the trial court did not err in dismissing the case 

without prejudice. Compare Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999) 

(per curiam) (dismissal with prejudice is a final ruling on the merits) with Deep 

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

695 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (dismissal based on a 

forum-selection clause is not a ruling on the merits). 

 Under the same heading, Horie represents that the trial court concluded that 

the Dula Parties had not met their summary-judgment burden but nevertheless 

ordered the transfer of the case to a foreign country. Both of these assertions are 

based on false premises. The trial court determined that the Dula Parties had met 

their summary-judgment burden to prove that the forum-selection clause is 

enforceable against Horie; thus, the trial court granted the motion. Horie’s contrary 

assertion is based on the statement in the trial court’s final judgment, “[T]he Court 
20

makes no finding as to whether Dula was Horie’s attorney.” This statement has no 

legal significance because findings of fact have no place in a summary-judgment 

proceeding. Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (per curiam). 

And, the trial court did not order the case transferred; as Horie himself has pointed 

out, the trial court dismissed the case without prejudice.9

B. Evidentiary Arguments 

 Horie argues that the trial court erred in overruling his objection to the “First 

Witness Statement of Arthur McKee Dula,” which was one of the documents the 

Dula Parties offered in support of their summary-judgment motion. Horie objected 

to the witness statement on the ground that it does not comply with Texas Civil 

Practice and Remedies Code section 132.001. He also argues that one paragraph in 

Dula’s Texas declaration incorporates hearsay.10

 We review evidentiary rulings for 

abuse of discretion. Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 728 

(Tex. 2016). 

 As to Horie’s objection that the witness statement does not comply with Texas 

Civil Practice and Remedies Code section 132.001, Dula incorporated his witness 

statement into a later declaration he signed under penalty of perjury pursuant to 

section 132.001. In this Texas declaration, Dula states that he has personal 

knowledge of the facts set forth in the Texas declaration, and that the facts are all 

true and correct. This declaration substantially complies with the Texas unsworn-

 

9

 Horie explains that this argument is based on the trial court’s statement, “The case having been 

sent to the Isle of Man, all further issues should be resolved there.” This appears to be a reference 

to the case that the Dula Parties, Excalibur, and others filed against Horie in a Manx court. The 

case was “sent” to the Isle of Man by the plaintiffs in that action.

10 Horie’s objections are not in the record, but we can identify them from his proposed order. 

Although Horie complains on appeal that Dula’s witness statement incorporates hearsay, his

hearsay objection in the trial court was raised only to paragraph 9 of Dula’s Texas declaration

(which is identical to paragraph 9 of Dula’s witness statement). We assume that Horie intended 

to refer in his appellate brief to his hearsay objection to Dula’s Texas declaration, for no hearsay 

objection to Dula’s witness statement has been preserved for review. See TEX. R. APP. P. 33.1(a).
21

declaration statute, and thus, it has the same effect as an affidavit. See TEX. CIV.

PRAC. & REM. CODE ANN. § 132.001(a) (“[A]n unsworn declaration may be used in 

lieu of a written sworn declaration, verification, certification, oath, or affidavit 

required by statute or required by a rule . . . .”); id. § 132.001(d) (“[A]n an unsworn 

declaration made under this section must include a jurat in substantially the 

following form . . . .”); United Rentals, Inc. v. Smith, 445 S.W.3d 808, 813 (Tex. 

App.—El Paso 2014, no pet. ) (“The operative part of the jurat is the portion 

subjecting the declarant to the penalty of perjury.”). Indeed, in quoting from Dula’s 

witness statement, Horie himself characterizes it as a statement “under oath.” 

 As to the paragraph of Dula’s Texas declaration that allegedly incorporates 

hearsay, that paragraph concerns Dula’s authentication of an October 2005 email 

exchange concerning a California attorney’s proposed changes to the MOU. 

Because we do not address the question of whether Dula acted as Horie’s attorney 

in October 2005 or in connection with the original MOU, the email does not affect 

our disposition of this appeal. Thus, even if the trial court abused its discretion in 

overruling the objection, the error would be harmless. 

C. Arguments Relying on Extraneous Material 

Under the heading, “Appellees Failed to Prove the [Manx] Court Has 

Jurisdiction Over Horie’s Claims Against Dula For His Acts As a Texas Lawyer,” 

Horie additionally avers that after summary judgment was rendered dismissing the 

case, the Manx court construed the Texas district court’s judgment to mean that 

Horie failed to prove that Dula acted as his attorney at the relevant time. Horie 

contends that as a result of the Manx court’s interpretation of the district court’s 

judgment, the judgment is, in effect, a dismissal with prejudice.

This argument rests entirely on material that is not part of the summaryjudgment record; in fact, the cited material did not exist when summary-judgment 
22

was rendered, and appears solely in the appendix to Horie’s appellate brief. We 

accordingly do not consider it. See TEX. R. APP. P. 34.1 (describing contents of 

appellate record); WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451, 

465 n.23 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (“[W]e cannot 

consider documents attached as appendices to briefs and must consider a case based 

solely upon the record filed.”). 

D. Argument About the Appropriate Procedural Vehicle 

 Finally, Horie argues that a motion for summary judgment is an improper 

procedural device for seeking enforcement of a forum-selection clause. We do not 

consider this argument because Horie did not raise this ground in his summaryjudgment response. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 

671, 678–79 (Tex. 1979); Norris v. Tex. Dev. Co., 547 S.W.3d 656, 662 (Tex. 

App.—Houston [14th Dist.] 2018, no pet.). 

V. CONCLUSION

 The Deed traces the course of Horie’s investment in Excalibur. It recites that 

Horie agreed in the MOU to purchase shares in Excalibur, and that in the Side 

Agreement, Horie agreed to modify the MOU and to place his shares in trust. The 

Deed recounts that Horie transferred control of the trust to LDH, and finally, 

expresses Horie’s agreement to the mutual release of claims and the termination of 

the MOU, the Side Agreement, and the trust in exchange for allowing Excalibur to 

redeem the shares from LDH. 

 Horie’s claims in this case are efforts to turn back the clock and receive his 

original investment back, and, as such, his claims are, as a matter of law, “in 

connection with” the subject-matter of the Deed. Regardless of whether Dula ever 

performed any legal work for Horie, it is undisputed that he did not do so in 
23

connection with the Deed. Finding Horie’s arguments to avoid enforcement of the 

Deed’s forum-selection clause to be without merit, we overrule the issues presented 

and affirm the trial court’s judgment dismissing Horie’s claims without prejudice. 

 

 /s/ Tracy Christopher 

 Justice 

Panel consists of Chief Justice Frost and Justices Christopher and Jamison.