Opinion issued January 31, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00053-CV
SATTERWHITE AVIATION SERVICE, INC., Appellant
V.
INTERNATIONAL PROFIT ASSOCIATES, INC., Appellee
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Cause No. 2006-45313
MEMORANDUM OPINION
Satterwhite Aviation Services, Inc. sued International Profit Associates, Inc. (“IPA”) alleging causes of action under the Texas Deceptive Trade Practices - Consumer Protection Act (“DTPA”), common law fraud, and negligent misrepresentation. IPA moved to dismiss the suit, claiming that a mandatory venue provision mandated jurisdiction in Lake County, Illinois. The trial court granted the motion to dismiss, and Satterwhite appealed.
In its sole issue, Satterwhite argues that the motion to dismiss was improperly granted because the trial court misconstrued the plain language of the agreement in holding that Lake County, Illinois was the mandated forum. We affirm.
Background
In June 2006, Satterwhite entered into an agreement with IPA for it to provide business consulting services to Satterwhite. Included in that agreement was an arbitration and forum selection clause, which read as follows:
At [Satterwhite’s] election, [IPA] agree[s] that all disputes of any kind between the parties arising out of or in connection with these respective independent agreements shall be submitted to binding arbitration which would be administered by the American Arbitration Association or National Arbitration and Mediation. With regard to all other matters, exclusive jurisdiction and venue shall vest in the Nineteenth Judicial District of Lake County, Illinois, Illinois law applying.
One month later, Satterwhite sued IPA in Harris County, Texas for common law fraud, violations of the DTPA, and negligent misrepresentation. IPA filed a motion to dismiss, and, after a hearing, the trial court granted IPA’s motion.
Standard of Review
We review the enforcement of a forum selection clause for an abuse of discretion. Phoenix Network Techs. (Europe) Ltd. v. Neon Sys., Inc., 177 S.W.3d 605, 610 (Tex. App.—Houston [1st Dist.] 2005, no pet.). However, we review contractual interpretation of a forum selection clause de novo. Id.
Forum Selection Clause
In our analysis, we must determine whether the parties have contracted to “submit to a particular jurisdiction.” In the present case, Satterwhite argues that the first sentence of the arbitration and forum selection clause—“disputes of any kind out of or in connection with these respective independent agreements”— does not choose a particular jurisdiction, but gives Satterwhite an option of either submitting its claims to arbitration or filing suit (it is silent regarding the venue for claims arising out of the agreement). Satterwhite argues that the second sentence of the clause—“with regard to all other matters”—chooses the jurisdiction of Lake County, Illinois, as it pertains to any claims that do not arise out of or in connection with the independent agreement at issue.
When interpreting a contract, we must first determine whether the provisions in question are ambiguous. Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983). A contract is ambiguous if, after examining the contract as a whole in light of the circumstances existing at the time the contract was signed and after applying the rules of construction, its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning. Id. at 393.
Satterwhite argues that an absence of a mandatory venue requirement in the arbitration phrase means that Satterwhite could file a lawsuit in any court with jurisdiction where proper venue lay. It further asserts that lack of a mandatory venue requirement in the arbitration phrase is ambiguous because it could refer to any county and state where IPA has purposefully availed itself and established minimum contacts sufficient to confer jurisdiction. We disagree. The arbitration and forum selection clause requires any Satterwhite claim against IPA to be litigated in Lake County, Illinois.
In Texas, forum selection clauses are enforceable provided (1) the parties have contractually consented to submit to a particular jurisdiction and (2) the other state recognizes the validity of such provisions. Greenwood v. Tillamook Country Smoker, Inc., 857 S.W.2d 654, 656 (Tex. App.—Houston [1st Dist.] 1993, no writ).
Satterwhite argues that, if it chose not to arbitrate, in the absence of a mandatory venue requirement, it could file a lawsuit in any court with jurisdiction where proper venue lay. When interpreting contracts, the primary concern of this Court is to give effect to the parties’ intentions as expressed in the contract. See Lenape Resources Corp. v. Tennessee Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex. 1996). In determining the parties’ intentions, intent must be taken from the agreement itself, not from the parties’ present interpretation. Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726, 731 (Tex. 1981). The agreement will be enforced as the parties have made it, without regard to whether they contracted wisely. See Jamestown Partners, L.P. v. City of Fort Worth, 83 S.W.3d 376, 381 (Tex. App.—Fort Worth 2002, pet. denied).
The phrase “[w]ith regard to all other matters” refers to matters that are not submitted to binding arbitration. Consequently, when the forum selection phrase is read in the context of the arbitration phrase contained in the same clause, its meaning becomes clear—Satterwhite can (1) elect to submit the controversy to binding arbitration or (2) file suit in Lake County, Illinois. Therefore, unless it opted to submit the claim to arbitration, Satterwhite was bound by the terms of the agreement to bring this suit in Lake County, Illinois. Accordingly, the trial court did not abuse its discretion in granting IPA’s motion to dismiss, and we overrule Satterwhite’s sole issue.
Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.