IN THE SUPREME COURT OF TEXAS
════════════
No. 05-0311
════════════
In re AutoNation,
Inc. And Auto M. Imports North, Ltd., d/b/a Mercedes-Benz of Houston-North, Relators
════════════════════════════════════════════════════
On Petition for Writ of Mandamus
════════════════════════════════════════════════════
Argued October 19,
2006
Justice O’Neill,
concurring.
I
agree that forum-selection clauses are presumed valid and enforceable unless the
opposing party can clearly show that (1) enforcement would be unreasonable or
unjust, (2) the clause is invalid for reasons of fraud or overreaching, (3)
enforcement would contravene a strong public policy of the forum where the suit
was brought, or (4) the selected forum would be seriously inconvenient for
trial. See In re AIU Ins. Co., 148 S.W.3d 109, 111-12 (Tex.
2004) (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 13-15 (1972)); In re Prudential Ins.
Co. of Am., 148 S.W. 3d 124, 134-35 (Tex.
2004). As Hatfield raises only the public-policy exception, we are not
confronted with potentially serious fundamental-fairness concerns that might
arise should the forum selected be chosen by unfair means or prove
inaccessible. See, e.g., Stobaugh
v. Norwegian Cruise Line Ltd., 5 S.W.3d 232, 234-36 (Tex. App.—Houston
[14th Dist.] 1999, pet. denied). Hatfield’s sole contention is that the
strong public-policy concerns we articulated in DeSantis
will be undermined if the parties’ forum-selection clause is enforced and the
suit to enforce the covenant not to compete proceeds in Florida. DeSantis
v. Wackenhut Corp., 793 S.W.2d 670, 680 (Tex.
1990) (“[T]he law governing enforcement of noncompetition
agreements is fundamental policy in Texas, and [] to apply the law of another
state to determine the enforceability of such an agreement in the circumstances
of a case like this would be contrary to that policy.”).
I agree with Hatfield that deciding
which noncompete agreements constitute reasonable
restraints of trade on employees in this state is a matter of fundamental Texas public policy. See
id. What is not apparent, however, is that enforcement of the
forum-selection clause in this case will result in application of the
contractual forum’s law in a manner that will undermine Texas public policy. See Tex. Bus. & Com. Code §§ 15.50-15.52 (Covenants Not to Compete Act);
Alex Sheshunoff Mgmt. Servs.,
L.P. v. Johnson, 209 S.W.3d 644 (Tex.
2006). Had there been a clear showing to this effect, I
might agree with the court of appeals’ analysis, or at least would consider the
trial court justified had it decided to abate the Texas
declaratory judgment action pending the Florida
court’s decision. But a mere indication that the Florida court intends to apply
Florida law does not, without more, justify a Texas court’s interference with
the parties’ chosen forum. For this reason, I concur in the Court’s judgment.
___________________________________
Harriet O’Neill
Justice
OPINION DELIVERED: June
29, 2007
