Petition for Writ of Mandamus Conditionally Granted, in Part, and Denied, 

in Part, and Opinion filed July 16, 2015.

In The

Fourteenth Court of Appeals

NO. 14-15-00261-CV

IN RE SHELBY LONGORIA, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

Probate Court No. 1

Harris County, Texas

Trial Court Cause No. 414270

OPINION

On March 25, 2015, relator Shelby Longoria filed a petition for writ of 

mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also 

Tex. R. App. P. 52. In the petition, Shelby asks this court to compel the Honorable 

Loyd Wright, presiding judge of Probate Court No. 1 of Harris County, to set aside 

his February 18, 2015 order denying Shelby’s motion to dismiss the claims of real 
2

party in interest, Adriana Longoria, based on a forum-selection clause. We 

conditionally grant the petition for writ of mandamus, in part, and deny it, in part.

I. BACKGROUND

Eduardo Longoria, Sr., a Mexican citizen and businessman, was the father of 

Shelby Longoria, Adriana Longoria, Eduardo Longoria, Jr. (“Wayo”), and Sylvia 

Dorsey. In 2002, Eduardo transferred shares of his two Mexican holding 

companies, Vertice Empresarial, S.A. de C.V. and Inmuebles y Terrenos, S.A. de 

C.V. (the “Mexican companies”), to a trust administered by a Mexican bank. 

Banca Afirme Grupo Financiero. Eduardo designated Shelby as 60% beneficiary 

and Wayo 40% beneficiary of this trust, which the parties describe as the “Afirme 

Trust.” At the same time, Eduardo executed a new will, naming Shelby as 

executor. Eduardo also signed a “Carta de Voluntad,” or “Wish Letter,” granting 

Sylvia and Adriana each $3,000,000 in cash to be distributed over time by the 

Afirme Trust. In December 2002, Eduardo and Adriana executed an “Acuerdo 

Privado,” or “Private Agreement,” providing that Adriana would receive 

$3,000,000 from the operating cash flow generated by the Mexican companies. 

Eduardo died in 2005. Dorothy Longoria, Eduardo’s wife and the mother of 

the children, died in 2012. On May 6, 2013, Tommy Dorsey, Sylvia’s husband and 

executor of Dorothy’s estate, sued Shelby for a demand for an accounting and 

breach of fiduciary duty to Dorothy, alleging that Shelby had diverted her 

community property interests to himself. Specifically, Tommy alleged, among 

other things, that (1) Shelby had induced Eduardo into signing the 2002 Afirme 

Trust, into which Eduardo conveyed all of his and Dorothy’s shares in the Mexican 

companies and of which he made Shelby and Wayo the beneficiaries; and (2)
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Shelby had induced Eduardo into signing the 2002 will, leaving all of Eduardo’s 

remaining property to Shelby and Wayo. 

On June 18, 2013, Shelby filed a will contest, alleging that Sylvia and 

Adriana had exerted undue influence over Dorothy in connection with her will, 

which divided Dorothy’s estate equally between Adriana and Sylvia and named 

Tommy executor, and that Dorothy lacked the capacity to execute the will. Shelby 

also sought the removal of Tommy as executor. On August 23, 2013, Shelby filed 

a third-party petition, alleging that Sylvia and Adriana were responsible in 

contribution for any damages found owing by Shelby to the estate. 

Adriana answered the will contest on December 4, 2013, and filed 

counterclaims against Shelby on January 6, 2014. Adriana amended her 

counterclaims on December 11, 2014, February 5, 2015, and February 11, 2015. 

Adriana alleged that Shelby induced Eduardo into entering the Private Agreement 

and into believing that it would be a fair allocation of the estate. She also

counterclaimed for tortious interference with inheritance rights, breach of fiduciary 

duty, tortious inference with the Private Agreement, breach of the obligation to 

perform the Private Agreement, and breach of the agreement to pay Adriana 

$100,000 upon Dorothy’s death and sought a declaration that an agreement called 

the Donation Agreement is not an enforceable contract.1 

On January 14, 2015, Shelby filed a motion to dismiss Adriana’s 

counterclaims based on a forum-selection clause in the Private Agreement that

provides for exclusive venue in the courts of Reynosa, Tamaulipas, Mexico. 

 

1 Adriana does not explain in her third amended petition what the Donation Agreement is 

or identify the parties to it.
4

In response to the motion to dismiss, Adriana contended that (1) the forumselection clause does not apply to her counterclaims; (2) the forum-selection clause 

is unreasonable and unjust in light of a pre-existing fiduciary relationship between 

Shelby and Adriana, where the agreement was made, where the parties resided, and 

the unacceptability of the Mexican forum; (3) the forum-selection clause is 

unenforceable because it was procured through fraud and overreaching by Shelby; 

and (4) Shelby waived his right to enforce the forum-selection clause by litigating 

Adriana’s counterclaims in the trial court for a year without invoking the clause. 

The trial court held a hearing on Shelby’s motion to dismiss on February 12, 

2015, and signed the order denying Shelby’s motion on February 18, 2015.

II. MANDAMUS STANDARD OF REVIEW

To be entitled to mandamus relief, a relator must demonstrate (1) the trial 

court clearly abused its discretion; and (2) the relator has no adequate remedy by 

appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). A trial 

court clearly abuses its discretion if it reaches a decision so arbitrary and 

unreasonable as to amount to a clear and prejudicial error of law or if it clearly 

fails to analyze the law correctly or apply the law correctly to the facts. In re 

Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) 

(per curiam). A trial court abuses its discretion when it fails to properly interpret 

or apply a forum-selection clause. In re Lisa Laser USA, Inc., 310 S.W.3d 880, 

883 (Tex. 2010) (orig. proceeding) (per curiam). An appellate remedy is 

inadequate when a trial court improperly refuses to enforce a forum-selection 

clause because allowing the trial to go forward will vitiate and render illusory the 
5

subject matter of an appeal, i.e., trial in the proper forum. Id. Thus, mandamus 

relief is available to enforce an unambiguous forum-selection clause. Id. 

III. Scope of the Forum-Selection Clause

Shelby argues that most of Adriana’s claims fall within the scope of the 

forum-selection clause in the Private Agreement.2 

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., Inc., 274 S.W.3d 672, 675 (Tex. 2009) (orig. 

proceeding) (per curiam). 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 

 

2

Shelby contends that, as a non-signatory to the forum-selection clause, he can enforce 

the clause under estoppel principles. Even though Adriana has not argued that Shelby cannot 

enforce the forum-selection clause in the Private Agreement based on the fact that he is not a 

signatory to the Agreement we, nonetheless, address this issue. 

Equitable estoppel theories allowing non-signatories to enforce arbitration agreements 

also apply to forum-selection clauses. Deep Water Slender Wells, Ltd. v. Shell Int’l Exploration 

& Prod., Inc., 234 S.W.3d 679, 693−94 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) 

(citing Phoenix Network Techs. (Europe) Ltd. v. Neon Sys., Inc., 177 S.W.3d, 605, 622−24 (Tex. 

App.—Houston [1st Dist.] 2005, no pet.)). “A person who has agreed to resolve disputes with 

one party in a particular forum may be required in some circumstances to resolve related disputes 

with other parties in the same forum.” Smith v. Kenda Capital, LLC, 451 S.W.3d 453, 458 (Tex. 

App.—Houston [14th Dist.] 2014, no pet.). Under the theory of direct benefits estoppel, a 

nonsignatory may enforce a forum-selection clause that contains other terms on which the 

signatory plaintiff must rely to prosecute its claims. Id.; In re Cornerstone Healthcare Holding 

Grp., Inc., 348 S.W.3d 538, 544−45 (Tex. App.—Dallas 2011, orig. proceeding). Direct benefits 

estoppel applies when a signatory’s claim against a nonsignatory references or presumes the 

existence of the written agreement containing the clause. Smith, 451 S.W.3d at 458. Adriana’s 

claims against Shelby clearly reference or presume the existence the agreement containing the 

forum-selection clause, i.e., the Private Agreement. Therefore, Shelby may enforce the forumselection clause in the Private Agreement to the extent that it encompasses Adriana’s claims.
6

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. Laibe Corp., 307 

S.W.3d at 316; In re ADM Inv. Servs., Inc., 304 S.W.3d 371, 375 (Tex. 2010) 

(orig. proceeding). 

The court must first determine whether the claims fall within the scope of 

the forum-selection clause. Deep Water Slender Wells, Ltd., 234 S.W.3d at

687−88. The court bases its determination on the language of the clause and the 

nature of the claims purportedly subject to the forum-selection clause. Id. at 688. 

If the claims fall within the scope, the court must determine whether to enforce the 

clause. Id.

In construing a contract, we must ascertain and give effect to the parties’ 

intentions as expressed in the writing itself. Italian Cowboy Partners, Ltd. v. 

Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011). If a contract is 

worded so that it can be given a certain or definite meaning then it is unambiguous, 

and the court will construe it as a matter of law. El Paso Field Servs., L.P. v. 

MasTec N. Am., Inc., 389 S.W.3d 802, 806 (Tex. 2012). If, after applying the 

pertinent rules of contract construction, the contract is subject to two or more 

reasonable interpretations, the contract is ambiguous. Id. The court must enforce 

an unambiguous contract as a matter of law without considering parol evidence. 

David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008) (per curiam).

The Private Agreement between Eduardo and Sylvia provides the following, 

in relevant part:
7

First. Regarding “THE TRUST.” The parties recognize the 

validity and scope of the “TRUST”, and in this regard they are in 

agreement with all its terms and conditions, and therefore declare that 

the agreement is the final and definitive will of the parties, and 

therefore, they comply with all terms and agree that the shares 

contributed to it are to be transferred to the designated beneficiaries.

Second. Payment to ADRIANA LONGORIA KOWALSKI. It is 

the will of her father that the amount of $3,000,000.00 (three million 

U.S. dollars) be delivered to his daughter ADRIANA LONGORIA 

KOWALSKI, from the operating cash flow generated by the 

companies represented by the shares contributed to the “TRUST”, or 

by their subsidiaries, and therefore it is the obligation of EDUARDO 

AND SHELBY LUIS LONGORIA KOWALSKI in the terms 

mentioned below:

On the date this Agreement is signed, the balance to be delivered to 

ADRIANA LONGORIA KOWALSKI, in terms of the preceding 

paragraph, amounts to the sum USD $2,069,100.00 (two million 

sixty-nine thousand one hundred U.S. dollars), according the 

statement of account that is attached hereto.

By virtue of the foregoing, an annual amount of $150,000.00 (one 

hundred fifty thousand U.S. dollars) of principal and interest will be 

given to ADRIANA LONGORIA KOWALSKI, in monthly 

installments of $12,500 (twelve thousand five hundred U.S. dollars) 

until the complete payment of the balance referred to above. In 

addition, the balance payable shall earn a normal interest rate of 75% 

(seventy-five percent) of the “prime rate” published by the Wall Street 

Journal.

* * *

Third. Final and Definitive Will of the Parties. The parties state 

that this Agreement is the final and definitive will of the parties; 

therefore, they are in agreement with all its terms, further stating that 

there is no mistake, fraud, bad faith, or any defect of will that might 

affect their understanding or decision regarding the content.
8

The TRUST’s obligation to deliver the mentioned quantities to 

ADRIANA LONGORIA KOWALSKI, in the terms set forth herein, 

shall continue in effect until full payment, acknowledging that, after 

payment of the amounts referred to in this Agreement, ADRIANA 

LONGORIA KOWALSKI shall be satisfied in relation to any present 

or future obligation charged to the “TRUST” assets or to those of 

Messrs. EDUARDO and SHELBY LUIS LONGORIA KOWALSKI.

Fourth. Jurisdiction and Mexican Law. This Agreement is 

established under the jurisdiction and laws of the United Mexican 

States. Therefore, the parties exclusively submit to the laws of 

Mexico, thus they expressly waive the application of any law, 

regulation, provision or rule of any jurisdiction other than Mexico, 

which might correspond to them due to their residence, paternity, 

citizenship, domicile, kinship or commercial relationship. Therefore,

in the event of any interpretation, dispute, or any aspect related to this 

Trust, they expressly submit to the court of the city of Reynosa, 

Tamaulipas, Mexico.

Likewise, the issuance of any law, regulation or provisions in 

jurisdictions outside the Republic of Mexico, or any act performed 

outside the national territory by any party seeking to (i) impose 

restrictions on this Agreement or to impose the performance of acts 

different from the purposes for which it is authorized[;] (ii) impose 

taxes, duties or tax burdens other than those under Mexican Law; (iii) 

expropriate, limit, confiscate, seize, dispose of, freeze or otherwise 

affect the rights of the Agreement based on federal, state or municipal 

laws, outside the jurisdiction of the Republic of Mexico, shall not 

apply to this Agreement, in all cases the jurisdiction and laws of the 

Republic of the United Mexican States being applicable under the 

terms of the previous paragraph.

Having seen and read the foregoing, the parties sign it in the city of 

Reynosa, Tamaulipas, on DECEMBER 17th, 2002.

The Fourth Clause of the Private Agreement contains two paragraphs that 

address the choice of forum and choice of law provisions. The first paragraph
9

provides the following, with respect to the forum selected by the parties: “in the 

event of any interpretation, dispute, or an aspect related to this Trust, they

expressly submit to the courts of the city of Reynosa, Tamaulipas, Mexico.”3

Adriana contends that the forum-selection clause does not apply to the 

Private Agreement because it specifically applies to the Afirme Trust. Eduardo 

created the Afirme Trust, into which he placed his and Dorothy’s shares of the 

Mexican companies. The Third Clause of the Private Agreement expressly states 

that the source of the payments made to Adriana under the Agreement was the 

Afirme Trust. Adriana specifically alleged that (1) Shelby induced Eduardo into 

entering various transactions that would increase his own inheritance while 

decreasing the inheritances of Wayo, Sylvia, and Adriana; and (2) Shelby induced 

Eduardo into entering the Private Agreement and into believing that this would be 

a fair allocation of his estate. Adriana further asserted that Shelby did not make 

the required payments from the Afirme Trust, but from Eduardo’s funds and then 

from Dorothy’s funds after the death of Eduardo. Shelby ceased making any 

payments in October 2010.

In the First Clause of the Private Agreement, Adriana recognized the scope 

and validity of the Afirme Trust and that the Mexican companies held in the Trust 

would be the source of money to make the payments to her under the Private 

Agreement. Adriana acknowledged this in her response to the mandamus petition.

The Afirme Trust is the designated source of funds to pay Adriana under the 

Private Agreement. Without the Afirme Trust, there would be no causes of action 

against Shelby for interference with inheritance rights, tortious interference with 

 

3 Emphasis added.
10

the Private Agreement, breach of his contractual obligation to perform the Private 

Agreement, or breach of his fiduciary duty related to the purported trust 

relationship created by the Private Agreement. 

Adriana contends that, even if the forum-selection clause applies to the 

Private Agreement, which she implicitly conceded would encompass her claims for

tortious interference with the Private Agreement and breach of the contractual 

obligation to perform the Private Agreement, it still does not apply to her claim for 

tortious interference with inheritance rights. Adriana has focused on the forumselection clause as applying to the Private Agreement. As explained above, the 

forum-selection clause is applicable to Adriana’s claims because she would have 

no grounds for her allegations without the Afirme Trust.

Moreover, courts have consistently held the language “any interpretation, 

dispute, or any aspect related to” is broad. See, e.g., TGI Friday’s Inc. v. Great 

Nw. Rests., Inc., 652 F. Supp. 2d 750, 759 (N.D. Tex. 2009) (“Forum selection 

clauses cover claims ‘relating to’ an agreement are broad in scope.”); RSR Corp. v. 

Siegmund, 309 S.W.3d 686, 701 (Tex. App.—Dallas 2010, no pet.) (“The phrase 

‘relates to,’ in particular, is recognized as a very broad term.”) (internal quotes and 

citations omitted); see also Young v. Valt.X Holdings, Inc., 336 S.W.3d 258, 263 

(Tex. App.—Austin 2010, pet. dism’d) (holding that each fraud, breach of 

fiduciary duty, and securities claim “arises under” or “relates to” the stock sale 

and, therefore, was encompassed by the forum-selection clause). Adriana, 

furthermore, cannot plead tort claims to avoid the application of the forumselection clause if those causes of action relate to the Afirme Trust. See My CaféCCC, Ltd. v. Lunchstop, Inc., 107 S.W.3d 860, 866 (Tex. App.—Dallas 2003, no 
11

pet.) (“Pleading alternative noncontractual theories of recovery will not alone 

avoid a forum selection clause if those alternative claims arise out of the 

contractual relations and implicate the contract’s terms.”). 

Adriana does not address her claim for breach of the fiduciary duty that 

allegedly arose prior to the existence of the Private Agreement. We, nonetheless,

address whether Adriana’s pre-contractual tort claim is subject to the forumselection clause. This court and other courts have held that fraud-in-theinducement claims can be subject to a forum-selection clause because it is a 

dispute involving the parties’ agreement. See, e.g., Clark v. Power Mktg. Direct, 

Inc., 192 S.W.3d 796, 799−800 (Tex. App.—Houston [14th Dist.] 2006, no pet.); 

My Café-CCC, Ltd., 107 S.W.3d at 867; see also Accelerated Christian Educ. Inc. 

v. Oracle Corp., 925 S.W.2d 66, 73 (Tex. App—Dallas 1996, no writ), overruled 

in part on other grounds by In re Tyco Elecs. Power Sys., Inc., No. 05-04-01808-

CV, 2005 WL 237232, at *4 (Tex. App.—Dallas Feb. 2, 2005, orig. proceeding 

[mand. denied]) (mem. op.) (stating that pre-contractual claims for 

misrepresentations made before the execution of the contract are not excluded from 

the scope of the forum-selection clause merely because the conduct took place 

before the contract came into existence). This court, however, did not address 

whether a forum-selection clause necessarily encompasses all pre-contractual 

claims. Clark, 192 S.W.3d at 800. 

As explained above, the forum-selection clause is very broad, encompassing

“any interpretation, dispute, or any aspect related to this Trust.” “When all the 

claims arise out of the parties’ contractual relations and implicate the contract’s 

terms, the forum selection clause will encompass all the causes of action relating to 
12

the agreement.” My Café-CCC, Ltd., 107 S.W.3d at 866. Adriana claims that 

Shelby had assumed a fiduciary duty to her by making payments to her from the 

Mexican companies ten years prior to the execution of the Private Agreement. 

Those payments then continued from the funds of the Afirme Trust. Adriana’s 

pre-contractual claim for breach of fiduciary duty implicates the Afirme Trust and 

is subject to the forum-selection clause. There would be no breach of fiduciary 

duty without the trust.

Adriana further asserts that the forum-selection clause does not apply to her 

claim for breach of the promise between Shelby and Dorothy to pay her $100,000 

upon Dorothy’s death. Shelby concedes that Adriana’s claim for the breach of the 

promise to pay her $100,000 upon Dorothy’s death does not fall within the scope 

of the forum-selection clause. 

As to her request for a declaratory judgment that the January 11, 2005 

Donation Agreement is unenforceable, Adriana first pleaded her request the day 

before the hearing on Shelby’s motion to dismiss. Adriana’s petition does not 

explain what the Donation Agreement is, no copy of the agreement was attached to 

the petition, and there was no briefing on the applicability of the forum-selection 

clause to this claim. Shelby, however, contends in his mandamus petition that the 

agreement bears directly on the manner in which payments would be made under 

the Private Agreement. Shelby suggests the request for a declaratory judgment

was not before the court and “[t]he trial court will be able to address the proper 

venue for this claim [regarding the Donation Agreement] upon receiving direction 

from this Court relating to the other claims.” The trial court stated in its order that 

it considered the pleadings of the parties and did not carve out any claims that were 
13

not being addressed in its ruling on the motion to dismiss. We do not have enough 

information from the mandamus record to determine that the forum-selection 

clause encompasses Adriana’s claim that Shelby breached the Donation 

Agreement.

In summary, we hold that the forum-selection clause applies to Adriana’s 

claims for (1) tortious interference with inheritance rights; (2) breach of fiduciary 

duty; (3) tortious interference with the Private Agreement; and (4) breach of the 

contractual obligation to perform the Private Agreement. The forum-selection 

clause, however, does not apply to Adriana’s claim that Shelby breached the 

agreement to pay Adriana $100,000 upon Dorothy’s death and, based on this 

record, we cannot say that Adriana’s claim that Shelby breached the Donation 

Agreement falls within the scope of the forum-selection clause. 

V. OBJECTIONS RAISED BY ADRIANA

A. Adriana’s Objections to the Mandamus Record

Adriana complains that Shelby cites, in his mandamus petition, materials 

that were not presented to the trial court in connection with the motion to dismiss, 

which, therefore, should not be considered in the mandamus proceeding. Adriana 

refers to most of the items contained in the mandamus record filed by Shelby, 

including pleadings filed by the parties, a motion to quash, the reporter’s record of 

the hearing on a previously denied motion to dismiss for forum non conveniens, 

and filings related to the motion to dismiss for forum non conveniens. The trial 

court stated in the order that it considered, among other things, “the pleadings on 

file.” Moreover, a relator must file a “certified or sworn copy of every document 

that is material to the relator’s claim for relief and that was filed in any underlying 
14

proceeding.” Tex. R. App. P. 52.7(a)(1). There is nothing improper about the 

items Shelby included in the mandamus record, and we are not aware of any 

authority for penalizing a relator for erring on the side of over-inclusion in 

connection with a mandamus record. Therefore, we reject Adriana’s contention 

that we cannot consider most of the items in the record in our review of the 

mandamus petition. 

B. Objections to Evidence Attached to the Motion to Dismiss

Adriana objected to Exhibits 3 and 3A, which were the October 15, 2002 

“Banca Afirme Fideicomiso No. 194-2”, the Afirme Trust, and a certified 

translation of the Afirme Trust, respectively. Johnny Carter, one of Shelby’s 

attorneys, stated, in his affidavit submitted in support of Shelby’s motion to 

dismiss, in relevant part:

5. Attached as Exhibit 3 is a true and correct copy of a document 

dated October 15, 2002 titled “Banca Afirme Fideicomiso No. 194-2.”

6. Attached as Exhibit 3A is a true and correct copy of a certified 

translation of Banca Afirme Fideicomiso No. 194.2.

Adriana argued that Carter did not testify that Exhibit 3 was a true and 

correct copy of the original or that he had personal knowledge of the execution or 

terms of the original, and, because Exhibit 3A was a translation of Exhibit 3, 

Exhibit 3A could “have no better claim of authenticity than Exhibit 3.” Adriana 

requested that the trial court strike and disregard Exhibits 3 and 3A. 

Shelby asserts that Adriana waived her objections to Exhibits 3 and 3A

because she did not obtain a ruling from the trial court. Shelby contends that Rule 

166a standards for summary judgment proceedings govern the motion to dismiss 
15

for improper venue. See Tex. R. Civ. P. 166a. Courts look to cases on arbitration 

for guidance on forum-selection clauses. See, e.g., Smith, 451 S.W.3d at 457 

(“Reference to cases addressing the applicability of arbitration clauses is 

appropriate when examining whether particular claims or parties fall within a 

forum selection clause’s reach.”); In re Boehme, 256 S.W.3d 878, 884 (Tex. 

App.—Houston [14th Dist.] 2008, orig. proceeding) (“In deciding whether a party 

has waived a forum-selection clause, the Supreme Court has repeatedly resorted to 

cases involving arbitration agreements.”). 

In the arbitration context, the trial court conducts a summary proceeding to 

determine the applicability of an arbitration clause based on the parties’ affidavits, 

pleadings, discovery, and stipulations. In re Estate of Guerrero, No. 14-13-00580-

CV, — S.W.3d —, 2015 WL 1884068, at *3 (Tex. App.—Houston [14th Dist.] 

Apr. 23, 2015, pet. filed) (en banc). The procedure is similar to a motion for 

summary judgment and is subject to the same evidentiary standards. Id. 

Under the summary judgment standard, copies of documents must be 

authenticated to constitute competent summary judgment evidence. Id. at *6. A 

properly sworn affidavit stating that the attached documents are true and correct 

copies of the original authenticates the copies so they may be considered as

summary judgment evidence. Id.

A defect in the form of authentication of documents, i.e., a defect in the 

affidavit attempting to authenticate the attached documents, is waived without an 

objection in, and a ruling from, the trial court. Id. at *9; see also Hicks v. Humble 

Oil & Ref. Co., 970 S.W.2d 90, 93 (Tex. App.—Houston [14th Dist.] 1998, pet. 

denied) (“Appellants objected to Exxon’s exhibits as not being properly 
16

authenticated but did not get a ruling of the trial court on any of their objections. 

By failing to secure rulings on their objections to Exxon’s summary judgment 

proof, appellants have waived any complaint on this appeal as to their admissibility 

into evidence.”). Here, Adriana objected to the form of the authentication and, 

therefore, was required to obtain a ruling on her objections. 

Adriana asserts that the trial court implicitly sustained her objections by 

denying Shelby’s motion to dismiss. Shelby responds that a ruling on the merits of 

a summary judgment motion is not an implicit ruling on evidentiary objections to 

summary judgment evidence and the prevailing party cannot avoid waiver of its 

evidentiary objections by arguing that it received a favorable ruling on the merits 

of the motion. See Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P., 391 

S.W.3d 596, 604 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding that the 

trial court’s granting of a summary judgment is not an implicit ruling on the 

movant’s objection to the nonmovant’s summary-judgment evidence); DuncanHubert v. Mitchell, 310 S.W.3d 92, 100 (Tex. App.—Dallas 2010, pet. denied) 

(holding that, where movant objected to nonmovant’s evidence, it could not be 

inferred that the trial court sustained movant’s objections merely by granting 

summary judgment); 

Even if the summary judgment procedure were not followed in the context 

of a motion to dismiss for a forum-selection clause, to preserve a complaint for 

appellate review, the record must show the complaint was made to the trial court 

by a timely request, objection, or motion that was sufficiently specific and the trial 

court (1) ruled on the request, objection, or motion either expressly or implicitly or 

(2) refused to rule on the request, objection, or motion, and the complaining party 
17

objected to the refusal. Tex. R. App. P. 33.1(a). There is nothing in the record to 

suggest that the trial court implicitly ruled on Adriana’s objections to Shelby’s 

exhibits submitted in support of his motion to dismiss. At the hearing, there was 

argument concerning the Afirme Trust, but Adriana did not object to the 

authentication of the Afirme Trust.

Adriana also objected to Exhibit 4 to the motion dismiss, which was the 

affidavit of Shelby’s Mexican law expert, Dr. Carlos Gabuardi, and in particular 

paragraph 4, subparagraphs b, c, and d, and paragraphs 11−19 because they 

contained opinions of the meaning and legal effect of the ordinary terms of a 

contract, which are questions of law for the court, and the parol evidence rule 

prohibits the admission of extrinsic evidence that alters the terms of a written 

contract. Adriana further objected that the remainder of Gabuardi’s affidavit was 

irrelevant, asked the trial court to sustain her objections, and strike and disregard 

Gabuardi’s affidavit. 

An objection to a defect in the substance of an affidavit may be raised for the 

first time on appeal. Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 670 (Tex. 

App.—Houston [14th Dist. 2012, pet. denied). The complained of portions of 

Gabuardi’s affidavit are mostly his interpretations of the Private Agreement and 

the forum-selection clause, which are questions of law for the court. See Akin v. 

Santa Clara Land Co., Ltd., 34 S.W.3d 334, 339 (Tex. App.—San Antonio 2000, 

pet. denied) (“Expert testimony regarding the legal interpretation of an 

unambiguous agreement encroaches upon the trial court’s province to determine 

the correct legal interpretation.”). No ruling on an objection was required to 

preserve error on those portions of Gabuardi’s affidavit because they offered legal 
18

conclusions. See Ramirez v. Transcon. Ins. Co., 881 S.W.2d 818, 829 (Tex. 

App.—Houston [14th Dist.] 1994, writ denied) (holding that “[a]n objection to an 

affidavit on the grounds that it states only a legal conclusion is one that relates to a 

defect of substance,” which may be raised for the first time on appeal). 

Even though Adriana did not waive her objections to Gabuardi’s affidavit,

we need not address her objections in light of the well-settled rules for contract 

construction. We have considered the interpretation of the forum-selection clause 

as a question of law, reviewing the trial court’s interpretation de novo, without 

considering parol evidence. See David J. Sacks, P.C., 266 S.W.3d at 450. 

VI. ADRIANA’S DEFENSES TO THE ENFORCEABILITY OF THE FORUM-SELECTION 

CLAUSE

A. Whether the Forum-Selection Clause is Unreasonable or Procured by 

Fraud

Adriana argues the forum-selection clause in the Private Agreement is 

unreasonable because it contravenes a pre-existing and overarching fiduciary 

relationship between Shelby and her and it was procured by fraud. Adriana claims 

a confidential relationship arose between Shelby and her, prior to the execution of 

the Private Agreement, because Shelby had assumed the obligation to make 

payments to her from the revenue of the Mexican companies he had been 

managing for a number of years. According to Adriana, because informal

fiduciary relationships are not recognized in Mexico, the application of the forumselection clause and the choice-of-law clause4 would deprive her of rights, which

 

4

The choice-of-law clause was not the subject of Shelby’s motion to dismiss.
19

had vested prior to the Private Agreement’s existence. Adriana claims that Shelby, 

in his role as a fiduciary, failed to make her aware of the Private Agreement’s 

negating a potential cause of action. Also based on this claimed fiduciary 

relationship, Adriana asserts that she was fraudulently induced into executing the 

forum-selection clause.

No duty of disclosure arises without evidence of a confidential relationship. 

Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674−75 (Tex. 1998). A failure to 

disclose information may constitute fraud where there is a duty to disclose. 

Bradford v. Vento, 48 S.W.3d 749, 754−55 (Tex. 2001). “Fraudulent inducement 

to sign an agreement containing a dispute resolution agreement such as an 

arbitration clause or forum-selection clause will not bar enforcement of the clause 

unless the specific clause was the product of fraud or coercion.” Lyon Fin. Servs., 

Inc., 257 S.W.3d 228, 232 (Tex. 2008) (orig. proceeding) (per curiam). The fraud 

or overreaching in question must involve the negotiation of the forum-selection 

clause itself. Young, 336 S.W.3d at 266−67.

However, a party who signs a contract is presumed to know its contents and 

its legal effects. Profits Assocs., Inc., 286 S.W.3d at 923; Mo. Pac. R.R. Co. v.

Lely Dev. Corp., 86 S.W.3d 787, 791 (Tex. App.—Austin 2002, pet. dism’d). A 

party cannot avoid a contract clause by simply failing to read it. In re U.S. Home 

Corp., 236 S.W.3d 761, 764 (Tex. 2007) (orig. proceeding) (per curiam). 

Evidence that a party concealed a forum-selection clause combined with evidence 

proving that concealment was part of an intent to defraud a party may be sufficient 

to invalidate the clause.” Profits Assocs., Inc., 286 S.W.3d at 923. 
20

Adriana, in her affidavit in support of her response to Shelby’s motion to 

dismiss, claimed that “Shelby discouraged me from reading the ACUERDO 

PRIVADO. He did not say to me that it contained a clause saying that I submitted 

to the courts of the city of Reynosa, Tamaulipas, Mexico in the event of any 

interpretation, dispute, or other aspect of the ACUERDO PRIVADO, or words to 

that effect, and I have had no such understanding, either when I signed it or since 

then.” Adriana does not claim that Shelby prevented her from reading the forumselection clause. An allegation that Shelby merely “discouraged” her from reading 

the Private Agreement before she signed it is not sufficient to establish fraud. See 

id. at 923−24 (rejecting relator’s argument that forum-selection clause was 

procured by fraud or overreaching because relator was not shown the clause); U.S. 

Home Corp., 236 S.W.3d at 764 (holding there was no evidence of fraud as 

relators conceded that no one prevented them from reading the back-side of a 

single sheet contract that contained the arbitration clause). 

Moreover, Eduardo and Adriana agreed that the Private Agreement was the 

“final and definitive will of the parties” and there was “no mistake, fraud, bad faith 

or any defect of will that might affect their understanding or decision regarding the 

content.” See In re Emex Holdings, LLC, No. 13-11-00145-CV, 2013 WL 

1683614, at *8 (Tex. App.—Corpus Christi Apr. 18, 2013, orig. proceeding [mand. 

denied]) (mem. op. en banc) (noting that the parties stated in the agreement that 

there was no fraud, bad faith, injury, or any other cause of nullity established by 

law and holding that the real parties had not clearly shown that the forum-selection 

clause was the product of fraud or overreaching).
21

Here, Adriana’s claim that she trusted Shelby as fiduciary to tell her that the 

forum-selection clause would negate a potential cause of action for breach of 

fiduciary duty in Mexico, does not render a forum-selection clause unenforceable. 

See id. (holding parties, who did not read the forum-selection clause before signing 

the agreement because they had instructed the attorney to change the clause and 

trusted him to do so, were charged with knowledge of the forum-selection clause). 

Not being able to bring certain causes of action in the designated forum is not a 

reason to avoid enforcement of a forum-selection clause. Lyon Fin. Servs., Inc., 

257 S.W.3d at 234 (holding inability to assert a claim for usury under Pennsylvania 

law did not create a public policy reason to deny enforcement of the forumselection clause).

Moreover, Adriana has not shown any evidence that Shelby knew that she 

would not be able to maintain claims for breach of fiduciary duty based on an 

informal confidential relationship under Mexican law. A claim based on the 

failure to disclose information necessarily presumes that the party with the duty to 

speak has knowledge of the facts. Cf. Four Bros. Boat Works, Inc. v. Tesoro 

Petroleum Cos., 217 S.W.3d 653, 670 (Tex. App.—Houston [14th Dist.] 2006, pet. 

denied) (stating that the failure to disclose information does not constitute fraud 

unless there is a duty to disclose information). Shelby had no duty to disclose facts 

of which he was not aware. See HTM Rests., Inc. v. Goldman Sachs & Co., 797 

S.W.2d 326, 329 (Tex. App.—Houston [14th Dist.] 1990, writ denied) (“A party 

cannot be guilty of fraudulently or intentionally concealing facts of which he is not 

aware. Although silence can be a form of misrepresentation, the duty to speak 

does not arise until the silent party is aware of the facts.”) (citations omitted).
22

Adriana has not shown that Shelby had a duty to disclose to her the forumselection and choice-of-law provisions in the Private Agreement and their 

consequences. Adriana further has not demonstrated that the forum-selection and 

choice-of-law provisions were procured by fraud or overreaching. 

B. Whether Reynosa, Tamaulipas, Mexico is a Seriously Inconvenient 

Forum

Adriana further contends that the forum-selection clause is unenforceable as 

seriously inconvenient such that she will be denied her day in court because the 

specified forum—Reynosa, Tamaulipas, Mexico—is “one of the most dangerous 

places in the world.” When inconvenience in litigating in the chosen forum is 

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

contractual forum will be so gravely difficult and inconvenient that he will for all 

practical purposes be deprived of his day in court. ADM Inv. Servs., Inc., 304 

S.W.3d at 375. “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.” Int’l Profit Assocs., Inc., 274 S.W.3d at 680. 

Adriana agrees that financial difficulties and inconvenience to the witnesses are not 

sufficient to avoid application of the forum-selection clause, but asserts that the 

dangerous conditions in Reynosa render the forum seriously inconvenient. See 

Lyon Fin. Servs., Inc., 257 S.W.3d at 254; In re Zotec Partners, LLC, 353 S.W.3d 

533, 537 (Tex. App.—San Antonio 2011, orig. proceeding). 

Relying on forum-non-conveniens cases, Shelby contends that purported 

dangerous conditions are not sufficient to avoid enforcement of a forum-selection 
23

clause in the absence of evidence that such conditions have an adverse impact on 

the operation of the judiciary.5 Shelby presented uncontroverted evidence that 

Adriana, Sylvia, and Tommy have hired attorneys and filed claims against him in 

Tamaulipas, Adriana’s Mexican law expert has handled litigation in Tamaulipas, 

and Reynosa has a fully functioning court system. Adriana responds that forum 

non conveniens cases are not applicable in the forum-selection clause analysis. We 

disagree. There is no reason not to consider forum non conveniens cases, which 

have addressed whether political unrest or other conditions render the alternative 

forum inadequate. 

 

5

See, e.g., Paolicelli v. Ford Motor Co., 289 Fed. App’x 387, 391 (11th Cir. 2008) 

(“absent evidence the political unrest has affected the Columbian judicial system or would affect 

litigation of this case, this fact is not sufficient to outweigh the other factors that weigh in favor 

of dismissal”); Rustal Trading US, Inc. v. Makki, 17 Fed. App’x 331, 337 (6th Cir. 2001) 

(holding political unrest in a foreign jurisdiction did not render the forum inadequate absent 

some showing that the unrest had had an adverse effect on the judicial system there); Transunion 

Corp v. PepsiCo, Inc., 811 F.2d 127, 129 (2d Cir. 1987) (holding there had been no showing that 

political unrest in the Philippines had an adverse impact on the judicial system); Miralda v. 

Tidewater, Inc., Civ. A. No. 11-1170, 2012 WL 3637845, at *4 (E.D. La. Aug. 23, 2012) 

(observing that several federal appellate courts had uniformly concluded that political unrest of 

the alternative forum had not per se rendered the forum inadequate in the forum non conveniens 

context absent some showing that this unrest negatively affected the judicial system of the 

country or the litigation at issue); Morales v. Ford Motor Co., 313 F. Supp. 2d 672, 682 (S.D. 

Tex. 2004) (rejecting contention that political situation in Venezuela would make trial in U.S. 

more convenient because of “paucity of evidence and information submitted to the court” on the 

issue); In re Bridgestone/Firestone, Inc., Tires Prods. Liability Litig., 190 F. Supp. 2d 1125, 

1143−44 (S.D. Ind. 2002) (considering physical threats to litigants and witnesses arising from 

then current volatile political situation in Columbia—“of particular interest [was] the fact that, in 

the recent past, judicial officers have been the targets of guerilla violation”—to be a factor 

weighing in favor of retaining jurisdiction); In re BPZ Res., Inc., 359 S.W.3d 866, 879 (Tex. 

App.—Houston [14th Dist.] 2012, orig. proceeding [mand. denied]) (holding that political unrest 

alone, was insufficient to establish that Peru was an inconvenient forum) 
24

Under these circumstances, Adriana has not shown that litigating in Reynosa 

is so gravely difficult and inconvenient that she will for all practical purposes be 

deprived of her day in court. 

C. Waiver of the Right to Enforce the Forum-Selection Clause

Adriana asserts that Shelby has waived his right to enforce the forumselection clause. Adriana pleaded four of her six counterclaims on January 9, 

2014, and added two claims in her amended pleadings on December 11, 2014, 

February 5, 2015, and February 11, 2015. Shelby litigated those four original 

causes of action for a year, including pleading affirmative defenses based on Texas 

law, before seeking dismissal of Adriana’s claims pursuant to the forum-selection 

clause. 

A party may waive the right to enforce a forum-selection clause. Boehme, 

256 S.W.3d at 884. In determining waiver of a forum-selection clause, the court 

may look to arbitration cases for guidance. Id. The test for waiver of an 

arbitration clause is whether (1) the party seeking arbitration has “substantially 

invoked the judicial process,” and (2) the party resisting arbitration suffered actual 

prejudice as a result. Id. 

Waiver is primarily a function of intent and requires either the intentional 

relinquishment of a known right or intentional conduct inconsistent with claiming 

that right. Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 393−94 

(Tex. 2014). Whether a party has substantially invoked the judicial process 

depends on the totality of the circumstances. Richmont Holdings, Inc. v. Superior 

Recharge Sys., L.L.C., 445 S.W.3d 573, 575 (Tex. 2015) (per curiam). 
25

Adriana contends that Shelby substantially invoked the judicial process by 

deposing her and serving her with written discovery requests and by having his 

own deposition taken and responding to Adriana’s discovery requests. These 

limited actions do not establish that Shelby substantially invoked the judicial 

process such that he waived his right to enforce the forum-selection clause. See In 

re Vesta Ins. Grp., Inc., 192 S.W.3d 759, 763−64 (Tex. 2006) (orig. proceeding) 

(per curiam) (holding the relators did not substantially invoke the judicial process 

by serving requests for disclosure, noticing four depositions, and sending a request 

for production); In re AIU Ins. Co., 148 S.W.3d 109, 121 (Tex. 2004) (orig. 

proceeding) (holding the relator did not waive enforcement of the forum-selection 

clause by filing answer, requesting a jury, and paying the jury fee; Boehme, 256 

S.W.3d at 885 (holding that deposing three witnesses, producing two witnesses for 

deposition, exchanging documents, and participating in a temporary injunction 

hearing did not constitute waiver of forum-selection clause). 

Adriana also asserts that she has been prejudiced by Shelby’s delay in 

seeking to enforce the forum-selection clause. Mere delay in moving to enforce 

the forum-selection clause does not constitute waiver. Cf. Richmont Holdings, 

Inc., 455 S.W.3d at 576 (holding that moving to compel arbitration nineteen 

months after lawsuit was filed was not waiver of right to arbitrate); Vesta Ins. Grp., 

Inc., 192 S.W.3d at 763−64 (holding that moving to compel arbitration two years 

after lawsuit was filed was not waiver of right to arbitrate). 

Adriana contends that Shelby gained an advantage in this litigation by 

questioning her at her deposition about the Private Agreement and payments made 

pursuant to it. Shelby responds that he had been seeking to take Adriana’s 
26

deposition since June 2013, several months prior to Adriana filing her 

counterclaims. Shelby’s counsel questioned Adriana about the Private Agreement 

because Adriana had initiated changes to Dorothy’s will due to her dissatisfaction

with the payments she received pursuant to the Private Agreement. Adriana cannot 

show prejudice from any discovery requests to which she responded as she chose 

to litigate in a forum not agreed to by the parties. See In re Automated Collection 

Techs., Inc., 156 S.W.3d 557, 560 (Tex. 2004) (orig. proceeding) (per curiam) 

(holding that real party in interest could not show prejudice from any duplication 

of time or efforts in litigating case where it had initiated proceedings in a forum 

other that the one to which it had contractually agreed).

Adriana further argues that she suffered prejudice by Shelby’s delay in 

invoking the forum-selection clause because the one-year statute of limitations in 

Mexico will limit her recovery of damages. Shelby points out that, because the last 

payment Adriana received under the Private Agreement was in October 2010, the 

delay from January 2014 to January 2015 is immaterial for limitations purposes in 

Mexico. Moreover, Adriana is complaining of the choice-of-law provision in the 

Private Agreement, which is not the subject matter of the trial court’s order or this 

original proceeding. Adriana has not shown that she has been prejudiced by 

Shelby’s delay in seeking to enforce the forum-selection clause. Therefore, 

Adriana has not established that Shelby waived his right to enforce the forumselection clause. 

VII. CONCLUSION

We hold that Adriana’s claims for tortious interference with inheritance 

rights, breach of fiduciary duty, tortious interference with the Private Agreement, 
27

and breach of the contractual obligation to perform the Private Agreement fall 

within the scope of the forum-selection clause, but Adriana’s claims for breach of 

the agreement to pay her $100,000 upon Dorothy’s death and breach of the 

Donation Agreement do not. We further hold that Adriana has not established that 

the forum-selection clause was procured as a result of overreaching or fraud, that 

Reynosa, Taumalipas is a seriously inconvenient forum, or that Shelby waived his 

right to enforce the clause.

Thus, the trial court abused its discretion by denying Shelby’s motion to 

dismiss based on the forum-selection clause contained in the Private Agreement as 

to Adriana’s claims for tortious interference with inheritance rights, breach of 

fiduciary duty, tortious interference with the Private Agreement, and breach of the 

contractual obligation to perform the Private Agreement, and Shelby does not have 

an adequate remedy by appeal. The trial court did not abuse its discretion by 

denying Shelby’s motion to dismiss as to Adriana’s claims for breach of the 

agreement to pay her $100,000 upon Dorothy’s death and breach of the Donation 

Agreement. 

Accordingly, we conditionally grant the petition for writ of mandamus, in 

part, and direct the trial court to vacate its February 18, 2015 order to the extent 

that it denies Shelby’s motion to dismiss as to Adriana’s claims for tortious 

interference with inheritance rights, breach of fiduciary duty, tortious interference 

with the Private Agreement, and breach of the contractual obligation to perform the 

Private Agreement, and dismiss those claims. We deny the remainder of the 

petition as to Adriana’s claims for breach of the agreement to pay her $100,000 
28

upon Dorothy’s death and breach of the Donation Agreement. The writ will issue 

only if the trial court fails to act in accordance with this opinion.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, Donovan, and Brown.