Anthony A. Rieder Ed Rapee III And Cadbury Solutions, LLC AND Kenny Woods v. Alan Meeker and CQuentia Series, LLC AND Anthony A. Rieder Ed Rapee III And Cadbury Solutions, LLC

• Court: Court of Appeals of Texas
• Decided: October 18, 2018
• Docket: 02-17-00176-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-17-00176-CV ___________________________

ANTHONY A. RIEDER; ED RAPEE III; AND CADBURY SOLUTIONS, LLC, Appellants V.

ALAN MEEKER AND CQUENTIA SERIES, LLC, Appellees AND KENNY WOODS, Appellant

V.

ANTHONY A. RIEDER; ED RAPEE III; AND CADBURY SOLUTIONS, LLC, Appellees

On Appeal from the 342nd District Court Tarrant County, Texas Trial Court No. 342-288556-16

Before Walker, Meier, and Pittman, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION

I. Introduction

This is an interlocutory appeal from an order on a special appearance. Kenny

Woods filed suit against Anthony A. Rieder; Ed Rapee III; and Cadbury Solutions,

LLC. Rieder, Rapee, and Cadbury jointly filed a special appearance. Subsequently,

Alan Meeker and CQuentia Series, LLC (collectively, Intervenors) both intervened in

Woods’s suit and asserted their own claims against Rieder, Rapee, and Cadbury.

The trial court granted Rieder’s, Rapee’s, and Cadbury’s special appearance as

to the claims asserted against them by Woods but denied their special appearance as

to the claims asserted against them by Intervenors. Rieder, Rapee, and Cadbury

perfected this appeal challenging the trial court’s denial of their special appearance as

to Intervenors’ claims. Woods cross-appealed, challenging the trial court’s granting of

Rieder’s, Rapee’s, and Cadbury’s special appearance as to the claims he asserted

against them.

We address two primary questions. First, whether Cross-Appellant Woods’s

claims, Intervenor Meeker’s claims, and Intervenor CQuentia’s claims pleaded against

Rieder, Rapee, and Cadbury fall within the scope of the forum-selection clause

contained in the CQuentia/Cadbury Series Agreement at issue here,1 and second,

whether Cross-Appellant Woods, Intervenor Meeker, and Intervenor CQuentia can

1 This question is presented, respectively, by Cross-Appellant Woods’s first issue and by Appellants Rieder, Rapee, and Cadbury’s first and second issues.

2 enforce the CQuentia/Cadbury Series Agreement’s forum-selection clause against

Rieder and Rapee individually and against Cadbury.2 Because the answer to both of

these questions is yes, we will reverse the portion of the trial court’s special

appearance order granting Rieder’s, Rapee’s, and Cadbury’s special appearance as to

Cross-Appellant Woods’s claims, and we will affirm the portion of the trial court’s

special appearance order denying Rieder’s, Rapee’s, and Cadbury’s special appearance

as to Intervenors’ claims.

II. Factual and Procedural Background

A. The Parties Meet and Begin Business Discussions

Kenny Woods, a Utah salesman, was introduced to Anthony A. Rieder, a

physician, and to Ed Rapee, a commercial insurance broker, by a mutual business

associate. The three men held several meetings in Rieder and Rapee’s home state of

Wisconsin and discussed various business proposals in the health care industry.

Woods then introduced Rieder and Rapee to CQuentia Series, LLC, a Fort Worth

company, in the hope of developing a joint business proposal in which CQuentia

would contract with Woods, Rieder, and Rapee to distribute CQuentia’s medical

products and services.

2 This question is presented by Appellants Rieder, Rapee, and Cadbury’s first issue and by Cross-Appellant Woods’s second issue. Because Rieder, Rapee, and Cadbury are both appellants and cross-appellees in this appeal and because Woods (in addition to Rieder, Rapee and Cadbury) is also an appellant––a cross-appellant—we refer to these parties in these capacities to reflect the capacity in which their particular arguments are made.

3 B. Woods, Rieder, and Rapee Form Cadbury Solutions, LLC

After several months of negotiations, Woods, Rieder, and Rapee created

Cadbury Solutions, LLC for the specific purpose of entering into an agreement with

CQuentia to conduct business in the health care industry. Each of the three men

served as a one-third owner and as a managing member and was designated to serve

as a member of the board of Cadbury. The Cadbury Operating Agreement—which

governs the relationship between Woods, Rieder, and Rapee as co-managers and

members of Cadbury—states in Paragraph 8(d):

Board Exculpation. No Board Member, officer, or agent appointed by the Board, individually or severally, will be liable, responsible, or accountable in damages or otherwise to the Company or to any Member for any acts performed or omitted by him or her related to the Company, except: (i) for any breach of the Board Member’s duty of loyalty to the Company or its Members; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for breaches of this Agreement; or (iv) for any transaction from which the Board Member derived an improper personal benefit. Each of the persons referenced above in this section is an express third-party beneficiary of this section. [Emphasis added.]

On February 1, 2016, Woods filed Cadbury’s organizational papers with the Nevada

Secretary of State. According to Woods, the effective date of the Cadbury Operating

Agreement drafted to form Cadbury was February 1, 2016.3

3 Although the parties dispute when the Cadbury Operating Agreement was signed and whether it ever became effective, the document states that it has an effective date of February 1, 2016.

4 C. Cadbury and CQuentia Enter into a Series Agreement

The negotiations between Woods, Rieder, Rapee, and Alan Meeker—who is

the CEO of CQuentia—culminated in the CQuentia/Cadbury Series Agreement,

whereby Cadbury contracted with CQuentia to promote the sale and distribution of

CQuentia’s DNA testing services to hospitals and health care providers. The

CQuentia/Cadbury Series Agreement contains a forum-selection clause, which states:

20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS, WITHOUT REFERENCE TO THE CONFLICTS OF LAW RULES OF THAT OR ANY OTHER JURISDICTION. ANY CLAIMS OR CONTROVERSIES UNDER OR RELATED TO THIS AGREEMENT SHALL BE EXCLUSIVELY DETERMINED IN THE STATE AND/OR FEDERAL COURTS LOCATED IN TARRANT COUNTY, TEXAS, TO WHOSE JURISDICTION EACH PARTY IRREVOCABLY CONSENTS.

The CQuentia/Cadbury Series Agreement also was executed on February 1, 2016;

Meeker signed on behalf of CQuentia, and Woods signed on behalf of Cadbury.

D. Cadbury’s Members Have a Falling Out

The relationship between CQuentia and Cadbury did not go as planned, and

Woods, Rieder, and Rapee soon had a falling out. In September 2016, CQuentia sent

a letter to Woods, Rieder, and Rapee stating that due to discord among the members

of Cadbury, CQuentia had determined, in its sole discretion, that the

CQuentia/Cadbury Series Agreement had terminated. 5 In response, Cadbury’s attorney sent a letter to Meeker as CEO of CQuentia

stating that none of the conditions had been met for termination of the

CQuentia/Cadbury Series Agreement and that it remained “in full force and effect.”

CQuentia’s general counsel responded to Cadbury’s attorney on behalf of Meeker and

argued that the CQuentia/Cadbury Series Agreement “was never born.” Because

Woods was working with Meeker and CQuentia apart from the CQuentia/Cadbury

relationship, Cadbury’s attorney also sent a letter to Woods threatening legal action

against him if he failed to honor his fiduciary and contractual obligations to Cadbury

under the Cadbury Operating Agreement.

E. Woods Files Suit in Texas

Following this exchange of letters, Woods filed suit against Rieder, Rapee, and

Cadbury in Tarrant County, Texas, seeking a declaratory judgment that Cadbury had

never become operational, that Cadbury had not entered into the CQuentia/Cadbury

Series Agreement because the Cadbury Board did not approve it, and that the

Cadbury Operating Agreement had never gone into effect. Woods also filed claims

for tortious interference with contract, fraud, and breach of contract against Rieder

and Rapee individually.

F. Cadbury Files Suit in Wisconsin

Cadbury reciprocated by filing suit against Woods and Meeker in the Circuit

Court of Waukesha County, Wisconsin, seeking declaratory relief that Cadbury is a

viable company; seeking damages from Woods for breach of contract, breach of the 6 covenant of good faith and fair dealing, breach of fiduciary duty, and usurpation of

corporate opportunity; and seeking damages from Meeker for tortious interference

with contract, injury to business, and tortious interference with prospective contract.

G. The Battle over Jurisdiction Begins

Back in the Tarrant County suit, Rieder, Rapee, and Cadbury filed

“Defendants’ Consolidated Special Appearance, Motion to Dismiss for Want of

Personal Jurisdiction, and, Alternatively, Motion to Dismiss based on Forum non

Conveniens, and Brief in Support Thereof,” arguing that jurisdiction for the disputes

should be in the Wisconsin court. Woods then amended his petition to include a

reference to the forum-selection clause in the CQuentia/Cadbury Series Agreement

and asserted its applicability to his claims against Rieder, Rapee, and Cadbury.

Cadbury subsequently agreed in the trial court––and also agrees on appeal––

that the CQuentia/Cadbury Series Agreement’s forum-selection clause is applicable to

the claims asserted against Cadbury by Intervenor CQuentia in CQuentia’s

intervention petition.4

4 In the trial court, Rieder, Rapee, and Cadbury’s counsel stated on the record, “I agree that the Court has personal jurisdiction over Cadbury only.” In this court, Rieder, Rapee, and Cadbury’s appellants’ brief states, “Cadbury does not dispute that any potential claims between it and CQuentia must be venued in Texas.”

7 H. Meeker and CQuentia Intervene in the Texas Suit

Meeker filed a plea in intervention in Woods’s Texas suit against Rieder, Rapee,

and Cadbury. Meeker sought a declaratory judgment against Rieder, Rapee, and

Cadbury that (1) Meeker and any entity he operates has the right to use Woods’s

services without incurring liability under the Cadbury Operating Agreement and (2) as

CEO of CQuentia, he had the right to end the CQuentia/Cadbury Series Agreement.

CQuentia also filed a plea in intervention in Texas, alleging fraud, fraudulent

inducement, and negligent misrepresentation claims against Rieder and Rapee

individually.

I. The Texas Court Rules on Jurisdiction

The parties in the Texas suit filed a series of motions and discovery requests,

culminating in a hearing before the Texas court on Rieder, Rapee, and Cadbury’s

consolidated amended special appearance, motion to dismiss for want of personal

jurisdiction, or in the alternative, motion to dismiss based on forum non conveniens,

as well as on their consolidated supplemental special appearance as to Intervenors’

claims. After a lengthy hearing, the trial court granted Rieder’s, Rapee’s, and

Cadbury’s special appearance as to Woods’s claims; dismissed with prejudice Woods’s

claims against them; and denied Rieder’s, Rapee’s, and Cadbury’s special appearance

as to Intervenors’ claims against them.5

Upon being advised of these interlocutory appeals, the Wisconsin court stayed 5

the proceedings in the related suit in its court pending the outcome of these appeals. 8 III. The Standard of Review, the Law Concerning Forum-Selection Clauses, and an Overview of the Parties’ Positions

A. Standard of Review

We review a trial court’s decision on whether to enforce a forum-selection

clause for an abuse of discretion. Brown v. Mesa Distribs., Inc., 414 S.W.3d 279, 284

(Tex. App.—Houston [1st Dist.] 2013, no pet.). “Under an abuse[-]of[-]discretion

standard, we defer to the trial court’s factual determinations if they are supported by

the evidence, but we review the trial court’s legal determinations de novo.” In re

Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). To the

extent our review involves contractual interpretation of a forum-selection clause, we

employ a de novo standard of review. Phoenix Network Techs. (Eur.) Ltd. v. Neon Sys.,

177 S.W.3d 605, 610 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

B. Overview of the Law on Enforcing Forum-Selection Clauses

Determining the enforceability of a forum-selection clause loosely involves a

four-stage process. We first determine whether the contract in fact contains a forum-

selection clause by using ordinary principles of contract interpretation. See RSR Corp.

v. Siegmund, 309 S.W.3d 686, 700 (Tex. App.—Dallas 2010, no pet.). Next, if such a

clause is found, we determine whether there is any reason to deem it unenforceable,

recognizing that there is a presumption that forum-selection clauses are generally

enforceable and should be given full effect. Pinto Tech. Ventures, L.P. v. Sheldon, 526

S.W.3d 428, 436 (Tex. 2017); In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex.

9 2010) (orig. proceeding); In re Int’l Profit Assocs., 274 S.W.3d 672, 675 (Tex. 2009) (orig.

proceeding). A trial court should enforce a mandatory forum-selection clause unless

clear evidence exists supporting unenforceability because “(1) the clause is invalid for

reasons of fraud or overreaching, (2) enforcement would be unreasonable or unjust,

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

brought, or (4) the selected forum would be seriously inconvenient for trial.” In re

Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding).

If we determine that the forum-selection clause is enforceable, we next analyze

the forum-selection clause’s scope and determine whether the pleaded claims fall

within that scope. See Pinto Tech. Ventures, L.P., 526 S.W.3d at 432. The parties’

chosen language and the common principles of contract law are the fulcrum of our

inquiry in determining the scope of a forum-selection clause because forum-selection

clauses are creatures of contract, and we must give effect to the parties’ intent as

expressed in the four corners of the contract. See id. In determining the parties’ intent

as to the scope of the forum-selection clause, instruments pertaining to the same

transaction may be read together even if the parties executed the instruments at

different times and the instruments do not expressly refer to each other. See Fort

Worth ISD v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000).

To determine whether pleaded claims fall within the scope of a forum-selection

clause, we engage in a common-sense examination of the substance of the claims

made. Pinto Tech. Ventures, L.P., 526 S.W.3d at 432. We look to the factual allegations 10 of the pleadings to determine whether the existence or terms of a forum-selection-

clause-containing contract are operative facts in the pleaded disputes and whether the

pleaded claims are fairly included within the specific language governing the scope of

the clause—here the specific language is “any and all claims or controversies under or

related to this agreement.” See id. at 432, 441–43 (stating that “whether a forum-

selection clause applies depends on the factual allegations undergirding the party’s

claims rather than the legal causes of action asserted”).

Finally, we determine whether the forum-selection clause is enforceable by and

against the parties as they are positioned on the issue of its enforceability. See, e.g., Ball

Up, LLC v. Strategic Partners Corp., No. 02-17-00197-CV, 2018 WL 3673044, at *6 (Tex.

App.—Fort Worth Aug. 2, 2018, no pet.) (mem. op.) (recognizing that legal theories

exist authorizing enforcement of forum-selection clauses by and against

nonsignatories).

C. Overview of the Parties’ Positions

In his cross-appeal from the trial court’s order granting Rieder’s, Rapee’s, and

Cadbury’s special appearance concerning his claims, Cross-Appellant Woods argues

that (assuming Cadbury validly entered into the CQuentia/Cadbury Series Agreement

despite the alleged lack of board approval of that contract under the Cadbury

Operating Agreement) his claims fall within the scope of the forum-selection clause,

that Cadbury is bound by the CQuentia/Cadbury Series Agreement’s forum-selection

clause as a party to it, and that Rieder and Rapee are bound by the forum-selection 11 clause as “transaction participants.”6 In Appellants Rieder, Rapee, and Cadbury’s

appeal from the trial court’s order denying their special appearances concerning

Intervenors’ claims, Appellants Rieder, Rapee, and Cadbury argue that the forum-

selection clause is not enforceable on the ground of forum non conveniens and that

Intervenors cannot enforce the forum-selection clause against Rieder and Rapee in

their individual capacities.7 Intervenors—as appellees in Rieder, Rapee, and Cadbury’s

appeal from the trial court’s denial of their special appearances as to Intervenors’

claims—address Appellants Rieder, Rapee, and Cadbury’s forum non conveniens

argument and adopt Cross-Appellant Woods’s forum-selection clause arguments.8

6 Because the issues presented in the table of contents of Cross-Appellant Woods’s brief differ from the eight issues presented in the body of his brief, we address the latter. 7 Because the issues presented in the table of contents of Appellants Rieder, Rapee, and Cadbury’s opening brief differ from the three issues presented in the body of their brief, we address the latter. 8 Intervenors, as appellees in Rieder, Rapee, and Cadbury’s appeal, raise five issues in response to the three issues presented by Appellants Rieder, Rapee, and Cadbury. We address Intervenors’ issues to the extent they dovetail with the issues presented by Appellants Rieder, Rapee, and Cadbury. In their first two issues, Intervenors argue that Appellants Rieder, Rapee, and Cadbury failed to challenge all grounds supporting the trial court’s denial of the special appearance as to their claims and that Rieder, Rapee, and Cadbury made general appearances by contesting and seeking rulings on discovery propounded by Intervenors prior to filing a special appearance as to Intervenors’ claims. Because we assume that the merits of Appellants Rieder, Rapee, and Cadbury’s special appearance are before us, we need not address the arguments in Intervenors’ first and second responsive issues.

12 IV. Analysis9

A. Existence and Enforceability of Forum-Selection Clause

Concerning the existence of a forum-selection clause, the CQuentia/Cadbury

Series Agreement contains one. As quoted above, that clause provides, in pertinent

part, that “any claims or controversies under or related to” the CQuentia/Cadbury

Series Agreement “shall be exclusively determined in the state and/or federal courts

located in Tarrant County, Texas, to whose jurisdiction each party irrevocably

consents.” Appellants Rieder, Rapee, and Cadbury argue on appeal that the forum-

selection clause is not enforceable against Cadbury based on forum non conveniens;

Appellants Rieder and Rapee make separate arguments alleging that the forum-

selection clause is not enforceable against them based on forum non conveniens.10

9 Our analysis is unavoidably tedious. Appellants Rieder, Rapee, and Cadbury make some joint arguments and some individual arguments and their arguments differ as between Intervenor Meeker and Intervenor CQuentia and as cross-appellees in Cross-Appellant Woods’s appeal. Cross-Appellant Woods raises eight issues in his appeal, and Appellee Intervenors raise five independent issues in their brief. We address some of these issues jointly. Some of the issues we need not address because they are unnecessary to the disposition of this appeal. See Tex. R. App. P. 47.1. 10 Intervenors argue that we lack interlocutory jurisdiction to address the trial court’s denial of Appellants Rieder, Rapee, and Cadbury’s motion for dismissal based on forum non conveniens. We disagree. Here, we review Appellants Rieder, Rapee, and Cadbury’s forum non conveniens arguments not as stand-alone complaints stemming from the denial of a motion to dismiss but in the context of Appellants Rieder, Rapee, and Cadbury’s challenge to the enforceability of the forum-selection clause as a basis for the trial court’s exercise of personal jurisdiction over them. See, e.g., Bogart v. Star Bldg. Sys., No. 01-10-00446-CV, 2011 WL 846566, at *3 (Tex. App.— Houston [1st Dist.] Mar. 10, 2011, pet. denied) (mem. op.) (addressing appellant’s forum non conveniens argument in interlocutory special appearance appeal when 13 1. Cadbury’s forum non conveniens unenforceability contentions as to Intervenor CQuentia’s claims

Although Cadbury concurred in the trial court and agrees on appeal that the

claims against it asserted by CQuentia do fall within the forum-selection clause in the

CQuentia/Cadbury Series Agreement, Cadbury nonetheless asserts that the forum-

selection clause is unenforceable as to Cross-Appellant Woods’s and Intervenors’

claims against Cadbury based on the fourth Nationwide factor—that the selected forum

(Texas) would be seriously inconvenient for trial. See Nationwide Ins. Co. of Am., 494

S.W.3d at 712. But by entering into the CQuentia/Cadbury Series Agreement,

Cadbury effectively represented that Texas was not so inconvenient of a forum as to

deprive Cadbury of its day in court. See In re Laibe Corp., 307 S.W.3d 314, 317 (Tex.

2010) (orig. proceeding) (“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” (quoting Lyon Fin. Serv. Inc., 257 S.W.3d 228, 234

(Tex. 2008) (orig. proceeding))). Cadbury—as a signatory to the CQuentia/Cadbury

Series Agreement containing the forum-selection clause and as the party challenging

the enforcement of the forum-selection clause—thus bore a heavy burden of proof to

establish the inconvenience of litigation in Texas—the forum Cadbury contractually

appellant’s forum non conveniens argument was asserted as basis for non- enforceability of the forum-selection clause.).

14 agreed to. See id. Absent clear proof of “special and unusual circumstances,” trial in

another forum is not “so gravely difficult and inconvenient” as to warrant

disregarding the contractually-specified forum. Id. (quoting AIU Ins. Co., 148 S.W.3d

109, 113 (Tex. 2004) (orig. proceeding)); see also Lyon Fin. Servs., Inc., 257 S.W.3d at 234

(explaining that “[i]f merely stating that financial and logistical difficulties will preclude

litigation in another state suffices to avoid a forum-selection clause, the clauses are

practically useless”).

Our close review of Cadbury’s forum non conveniens arguments and of the

record reveal no arguments or clear evidence establishing that Texas is a seriously

inconvenient forum such that, in effect, Cadbury will be deprived of its day in court if

litigation proceeds in Texas. Because we agree with the portion of Appellee

Intervenors’ fourth issue asserting that Rieder, Rapee, and Cadbury’s forum non

conveniens argument as to Cadbury lacks merit, we overrule the portions of

Appellants Rieder, Rapee, and Cadbury’s first and second issues that argue forum non

conveniens as a ground for defeating enforcement of the forum-selection clause set

forth in the CQuentia/Cadbury Series Agreement against Cadbury.

2. Rieder and Rapee’s forum non conveniens unenforceability contentions as to Intervenors’ claims

Concerning the enforceability of the forum-selection clause as to Intervenors’

claims, Rieder and Rapee do not assert any of the Nationwide factors for

unenforceability of the forum-selection clause; they do not argue that the forum-

15 selection clause is unenforceable because Texas is a seriously inconvenient forum.11

Because Rieder and Rapee did not assert any basis for the unenforceability of the

forum-selection clause, we overrule the portions of Appellants Rieder, Rapee, and

Cadbury’s first and second issues presented in their Brief of Appellants that argue

forum non conveniens as a ground to defeat enforcement by Intervenors of the

forum-selection clause set forth in the CQuentia/Cadbury Series Agreement against

Rieder and Rapee. See, e.g., Lisa Laser USA, Inc., 310 S.W.3d at 884 (not addressing

enforceability after noting that “HealthTronics does not argue that the forum-

selection clause is unenforceable”).

3. Cross-Appellees Rieder, Rapee, and Cadbury’s forum non conveniens unenforceability contention as to Cross-Appellant Woods’s claims

In his eighth issue, Cross-Appellant Woods argues that “Defendants’ forum

non conveniens position is untenable.” Concerning the unenforceability of the

forum-selection clause as to Cross-Appellant Woods’s claims against Cross-Appellees

Rieder, Rapee, and Cadbury, they do not assert on appeal that the forum-selection

11 Instead, as to Intervenor Meeker’s claims, Rieder, Rapee, and Cadbury generally assert in their Brief of the Appellants and in their Reply Brief of the Appellants that Meeker’s claim for declaratory relief should be decided by a Wisconsin court because Woods’s first-filed Texas suit was an anticipatory suit for declaratory relief. The cases cited by Rieder, Rapee, and Cadbury in support of this proposition, however, do not involve a forum-selection clause; instead, they apply the “first-to- file” rule to decide where a suit should proceed when it is filed in two permissive forums. See Mill Creek Press, Inc. v. Thomas Kinkade Co., No. CIVA.3:04-CV-1213-G, 2004 WL 2607987, at *4–5 (N.D. Tex. Nov. 16, 2004) (mem. order) (explaining the “first-to-file” rule).

16 clause should not be enforced because Texas is a seriously inconvenient forum for the

litigation of Cross-Appellant Woods’s claims.12 See, e.g., Harland Clarke Holdings Corp.,

997 F. Supp. 2d at 572. The equitable forum-non-conveniens arguments presented by

Cross-Appellees Rieder, Rapee, and Cadbury in Cross-Appellant Woods’s appeal do

not support the trial court’s sustaining of Rieder, Rapee, and Cadbury’s special

appearance as to Woods’s claims; Rieder, Rapee, and Cadbury’s equitable forum-non-

conveniens arguments are not germane because they apply a legal standard not

12 As to Cross-Appellant Woods’s claims, Cross-Appellees Rieder, Rapee, and Cadbury set forth a general, equitable forum-non-conveniens analysis without reference to the forum-selection clause. They rely on Direct Color Servs., Inc. v. Eastman Kodak Co., 929 S.W.2d 558, 562 (Tex. App.—Tyler 1996, writ denied), for the proposition that “[f]orum non conveniens is an equitable doctrine exercised by courts to resist imposition of an inconvenient jurisdiction on a litigant, even if jurisdiction is supported by the long-arm statute and would not violate due process.” They argue that “Woods has not shown why Wisconsin would be an inadequate forum for adjudicating this dispute.” But this equitable forum-non-conveniens analysis is adjusted when a forum-non-conveniens motion is premised on a forum-selection clause. See Harland Clarke Holdings Corp. v. Milken, 997 F. Supp. 2d 561, 572 (W.D. Tex. 2014) (“[T]he typical [federal forum-non-conveniens] analysis is adjusted when the transfer motion is premised on a forum-selection clause” (citing Atl. Marine Constr. Co. v. United States Dist. Court for the W. Dist. of Tex., 134 S. Ct. 568, 581 (2013))). The practical effect of this adjusted analysis is that forum-selection clauses should control except in unusual cases. See id.; see also Bright LLC v. Best W. Int’l, Inc., No. 16-CV- 02500-JAR, 2017 WL 552292, at *3 (D. Kan. Feb. 10, 2017) (mem. & order) (explaining that when determining a forum-selection clause’s enforceability, the forum-non-conveniens analysis “should not be about the parties’ private interest, but instead should address the public-interest factors”); Deep Water Slender Wells, Ltd. v. Shell Int’l Exploration & Prod., Inc., 234 S.W.3d 679, 692 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (recognizing that the Supreme Court of Texas abandoned the “interests of the witnesses and the public” prongs of the forum-selection-clause analysis in determining whether to enforce a mandatory forum-selection clause and that, by so arguing, the Deep Water Parties had premised their forum-non-conveniens argument on the wrong legal standard).

17 applicable when a forum-selection clause is pleaded as the basis for personal

jurisdiction. See Deep Water Slender Wells, Ltd., 234 S.W.3d at 693 (rejecting same

arguments as premised on the wrong legal standard); see also Laibe Corp., 307 S.W.3d at

318 (explaining that conclusory statements are insufficient to establish the level of

extreme inconvenience required to disregard a forum-selection clause (citing In re

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

sustain Cross-Appellant Woods’s eighth issue.

Having determined that no clear evidence of unenforceability exists, we

presume the forum-selection clause in the CQuentia/Cadbury Series Agreement is

enforceable and should be given full effect. We next address whether Cross-

Appellant Woods’s, Intervenor Meeker’s, and Intervenor CQuentia’s claims fall within

the scope of the forum-selection clause.

B. Do the Claims of Cross-Appellant Woods, Intervenor Meeker, and Intervenor CQuentia Fall within the Scope of the Forum-Selection Clause?

1. The Scope of the Forum-Selection Clause

To determine the scope of the CQuentia/Cadbury forum-selection clause, our

starting point is the intent of the parties as ascertainable from the specific language of

the forum-selection clause. See Pinto Tech. Ventures, L.P., 526 S.W.3d at 437. The

specific language of the CQuentia/Cadbury Series Agreement’s forum-selection clause

provides that “any claims or controversies under or related to” the

CQuentia/Cadbury Series Agreement “shall be exclusively determined in the state

18 and/or federal courts located in Tarrant County, Texas, to whose jurisdiction each

party irrevocably consents.” The forum-selection clause’s use of the word “shall”

makes this a mandatory forum-selection clause. See Phoenix Network Techs., 177 S.W.3d

at 615.

The forum-selection clause’s “any claims or controversies under or related to”

language is very broad. The term “controversies” encompasses more than just

“claims,” i.e., legal actions; the use of the term “controversies” shows an agreement

that the forum-selection clause will apply to matters other than breach-of-contract

claims. See Pinto Tech. Ventures, L.P., 526 S.W.3d at 439 (stating that “[w]hen a forum-

selection clause encompasses all ‘disputes’ ‘arising out of’ the agreement, instead of

‘claims,’ its scope is necessarily broader than claims based solely on rights originating

exclusively from the contract”); see also In re Bambu Franchising LLC, No. 05-17-00690-

CV, 2017 WL 4003428, at *3 (Tex. App.––Dallas Sept. 12, 2017, orig. proceeding)

(mem. op.).

The forum-selection clause’s “related to this agreement [the CQuentia/Cadbury

Series Agreement]” language is also very broad. See, e.g., In re Longoria, 470 S.W.3d

616, 628 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding) (explaining that

courts have consistently interpreted “related to” language in forum-selection clauses

as broad and collecting cases); JFP Servs., L.L.C. v. Torans, Nos. SA-17-CV-00210-FB,

SA-17-CV-1031-DAE, 2018 WL 3326841, at *7 (W.D. Tex. Apr. 30, 2018) (report &

recommendation) (“Texas courts interpret the phrase ‘relate to’ even more broadly 19 than the phrase ‘arising out of,’ concluding that the language signifies an intent to

encompass ‘all claims that have some possible relationship with the agreement.’”

(citing In re Counsel Fin. Servs., L.L.C., No. 13-12-00151-CV, 2013 WL 3895317, at *5

(Tex. App.—Corpus Christi July 25, 2013, orig. proceeding) (mem. op.) (collecting

cases interpreting clauses containing “relate to”))); see also John Wyeth & Brother Ltd. v.

CIGNA Int’l Corp., 119 F.3d 1070, 1074 (3d Cir. 1997) (construing forum-selection

clause’s language encompassing “any dispute . . . in relation to” the forum-selection-

clause-containing contract as including within its scope any dispute having any

“logical or causal connection” to the contract).

We examine the nexus or relationship that is required to exist between the

substance of the asserted claims, disputes, or controversies (as dictated by the

language of the forum-selection clause) and the forum-selection-clause-containing

contract. That is, we examine whether the matters in controversy involve, relate to,

arise from, or are connected in some other way (as dictated by the language of the

forum-selection clause) to the contract containing the forum-selection clause. See, e.g.,

Pinto Tech. Ventures, L.P., 526 S.W.3d at 438 (applying the “but for” nexus test when

the forum-selection clause applied to “any dispute arising out of” the forum-selection-

clause-containing contract); JFP Servs., L.L.C., 2018 WL 3326841, at *7 (recognizing

that counterclaim for tortious interference with a contract other than the forum-

selection-clause-containing contract “may not pass the but-for [relationship] test”

applied in Pinto Tech Ventures to the forum-selection clause’s “arising out of” 20 relationship language but would still fall within the “relate to” relationship language of

the forum-selection clause at issue in JFP Servs., L.L.C.).

Other courts13 addressing the scope of mandatory forum-selection clauses that

contain language similar to the CQuentia/Cadbury Series Agreement’s forum-

selection clause’s language have held that the scope of those forum-selection clauses

included both tort and breach-of-contract claims related to the forum-selection-

clause-containing contract,14 other tort claims,15 and even claims for breach of a

different contract when these claims were interrelated with the forum-selection-

clause-containing contract16 and the essential allegations of the claims were

inextricably enmeshed or factually intertwined with the underlying contract containing

13 We include federal cases in our analysis, as did the Texas Supreme Court in Pinto Tech. Ventures, L.P. See 526 S.W.3d at 438 (“[e]xamining federal [forum-selection] law for further guidance”). 14 See Pinto Tech. Ventures, L.P., 526 S.W.3d at 440; My Café–CCC, Ltd. v. Lunchstop, Inc., 107 S.W.3d 860, 866 (Tex. App.—Dallas 2003, no 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.”). 15 See JFP Servs., L.L.C., 2018 WL 3326841, at *7 (holding claim for tortious interference with contract other than forum-selection-containing contract was nonetheless “related to” forum-selection-containing contract so as to fall within its scope).

See, e.g., Bright LLC, 2017 WL 552292, at *3–4 (enforcing forum-selection 16

clause contained in Membership Agreement contract although suit was based on Terms of Agreement contract because “courts have enforced forum-selection clauses in contracts not directly at issue but interrelated to the contract in the complaint”).

21 the forum-selection clause. See Pinto Tech. Ventures, L.P., 526 S.W.3d at 440; see also,

e.g., In re Bloom Bus. Jets, LLC, 522 S.W.3d 764, 769 (Tex. App.—Houston [1st Dist.]

2017, orig. proceeding); Longoria, 470 S.W.3d at 628. In such cases, the forum-

selection clause should be denied force only if the facts alleged in support of the claim

stand alone and are completely independent of the forum-selection-clause-containing

contract and if the claim could be maintained without reference to that contract. Pinto

Tech. Ventures, L.P., 526 S.W.3d at 440.

In ascertaining the parties’ intentions with regard to the scope of the forum-

selection clause in the CQuentia/Cadbury Series Agreement, we are to construe the

CQuentia/Cadbury Series Agreement and its forum-selection clause from a utilitarian

standpoint, bearing in mind the particular business activity sought to be served. See,

e.g., Frost Nat’l Bank v. L&F Distrib., Ltd., 165 S.W.3d 310, 310–12 (Tex. 2005). The

record before us establishes the following facts: Cadbury was created by Woods,

Rieder, and Rapee for the purpose of entering into business with CQuentia (whose

CEO is Meeker); the Cadbury Operating Agreement was signed by Woods, Rieder,

and Rapee, and the CQuentia/Cadbury Series Agreement was signed by Woods for

Cadbury and by Meeker for CQuentia; and the Cadbury Operating Agreement and the

CQuentia/Cadbury Series Agreement both contained the same effective date and

were executed near the same date. Consequently, these two contracts––the Cadbury

Operating Agreement and the CQuentia/Cadbury Series Agreement––are part of the

same business transaction and were entered into for the unitary purpose of enabling 22 Woods, Rieder, and Rapee (as Cadbury) to do business with CQuentia, so we read

these two contracts together as the expression of the parties’ intent as to the

agreement between them.17 See, e.g., Laibe Corp., 307 S.W.3d at 317 (reading invoice

and subsequent equipment purchase contract together because they “pertained to the

same transaction”); Fort Worth ISD, 22 S.W.3d at 840 (reading two Fort Worth

ordinances and “contemporaneous, related documents” as together comprising city’s

contract with local school district because they were all made at the same time and

concerned a common subject); see also Castillo Info. Tech. Servs., LLC v. Dyonyx, L.P.,

554 S.W.3d 41, 46 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (collecting cases).

2. Cross-Appellant Woods’s Claims

Having examined the meaning of the CQuentia/Cadbury Series Agreement’s

broad forum-selection clause language indicating that the clause applies to any

controversies related to the CQuentia/Cadbury Series Agreement, we next examine

whether Cross-Appellant Woods’s pleaded claims against Cross-Appellees Rieder,

Rapee, and Cadbury present “controversies” “related to” the CQuentia/Cadbury

Series Agreement. To determine whether Cross-Appellant Woods’s claims fall within

the scope of the forum-selection clause, we first look to the factual allegations

17 As set forth below, in section IV.B.2., Cross-Appellant Woods’s claims fall within the scope of the forum-selection clause even if the CQuentia/Cadbury Series Agreement is read alone without reference to the Cadbury Operating Agreement. We explain here that the two agreements are part and parcel of the same transaction because we construe them together for purposes of our subsequent “transaction- participant” analysis set forth in section IV.C.3.

23 supporting his complaints to determine whether—engaging in a common-sense

examination of the substance of his claims—those claims are factually premised on

the validity, terms, or performance of the CQuentia/Cadbury Series Agreement or

intertwined with it. See Pinto Tech. Ventures, L.P., 526 S.W.3d at 439–40. We then

focus on whether the requisite “related to” relationship exists between Cross-

Appellant Woods’s disputes with Cross-Appellees Rieder, Rapee, and Cadbury and

the CQuentia/Cadbury Series Agreement. See id.

A review of the factual allegations in Cross-Appellant Woods’s live pleadings

against Cross-Appellees Rieder, Rapee, and Cadbury establishes that Cross-Appellant

Woods’s claims for a declaratory judgment, tortious interference, fraud, and breach of

contract are all premised on the same operative facts:

• Cross-Appellant Woods’s declaratory judgment claim sought a declaration “as to the legal relations between himself on the one hand and Rieder, Rapee, and Cadbury on the other”; sought a “declaration as to any obligations Woods may have to Cadbury, which entity Woods maintains, pleading in the alternative, never became legally efficacious”; and sought a declaration that, “regardless of whether Cadbury is viable, it never entered into any legally enforceable contract with [CQuentia] because any such relationship was never undertaken or ratified by the Board.”

• Cross-Appellant Woods’s tortious interference claim pleaded that Cadbury, Rieder, and Rapee—“[b]y now threatening [CQuentia] with legal action if it maintains its business relationship and/or contractual relationship with Woods”—“are tortiously interfering with that relationship” and that “[t]hese tortious actions . . . relate to the [CQuentia/Cadbury Series Agreement], which has a mandatory forum and venue clause for resolving such a dispute in Tarrant County, Texas.”

24 • Cross-Appellant Woods’s fraud claim alleged that Rieder and Rapee made representations and promises to Woods “to induce [him] into entering into the Cadbury relationship which [was] supposed to generate substantial business[] [but] did not do so” and that “Woods reasonably relied on those false representations and promises by agreeing to form Cadbury and provide efforts to obtain business for Cadbury, including with [CQuentia].”

• Cross-Appellant Woods’s breach-of-contract claim alleged, in the alternative, that “Rieder and Rapee made offers to Woods as to bringing in business and a sales force if Woods would enter into the Cadbury LLC with them”; that “Woods accepted the offer and joined Cadbury as a Member (should the Court find Cadbury to be legally extant arguendo, pleading in the alternative)”; and that “Rieder and Rapee breached the agreement they had with Woods by, inter alia, not bringing in business and a sales force.”

A common-sense view of the substance of Cross-Appellant Woods’s claims

shows that each of the claims involves the validity of the CQuentia/Cadbury Series

Agreement or has a substantial connection to it. See id. at 439–40; see also John Wyeth

& Brother, Ltd., 119 F.3d at 1074. Cross-Appellant Woods seeks a declaration that the

CQuentia/Cadbury Series Agreement is not valid because Cadbury’s Board did not

approve it as required by the Cadbury Operating Agreement—this claim presents a

controversy that is related to the CQuentia/Cadbury Series Agreement.18 Cross-

Appellant Woods premises his tortious interference claim on Cross-Appellees Rieder,

Rapee, and Cadbury’s threat of legal action against CQuentia if CQuentia continues a

18 As Cross-Appellant Woods notes in his brief, “How could anything be more ‘related to’ a contract than whether it is a valid contract or not?”

25 previously existing contractual relationship or business relationship with Woods—this

is a controversy related to, or with a substantial connection to, the CQuentia/Cadbury

Series Agreement because Rieder, Rapee, and Cadbury have no relationship with

CQuentia outside the CQuentia/Cadbury Series Agreement. See Harland Clarke

Holdings Corp., 997 F. Supp. at 574 (citing Nauru Phosphate Royalties, Inc. v. Drago Daic

Interests, Inc., 138 F.3d 160, 164–65 (5th Cir.) (holding that when parties agree to an

arbitration clause governing “[a]ny dispute . . . relating to this Agreement,” they

“intend the clause to reach all aspects of the relationship”), cert. denied, 525 U.S. 876

(1998)). Cross-Appellant Woods’s fraud claim and alternative breach-of-contract

claim are also factually intertwined with the CQuentia/Cadbury Series Agreement;

Cross-Appellant Woods pleaded that Rieder and Rapee made false representations to

him about their abilities to bring business to a Cadbury/CQuentia deal to induce him

to form Cadbury and then failed to keep or breached the promises they had made in

exchange for Woods’s participation in Cadbury. See id. at 575 (citing Personal Security

& Safety Sys., Inc. v. Motorola, Inc., 297 F.3d 388, 393 (5th Cir. 2002), and holding

arbitration provision applicable to all disputes related to the agreement applied to

fraudulent misrepresentations made during negotiations leading up to the agreement).

Applying the “related to” nexus required by the CQuentia/Cadbury Series

Agreement’s forum-selection clause, we hold that the substance of Cross-Appellant

Woods’s pleaded theories of recovery against Rieder and Rapee falls within the scope

of the forum-selection clause. Cross-Appellant Woods’s petition reveals the central 26 role the CQuentia/Cadbury Series Agreement plays in each of his claims; the

existence of the CQuentia/Cadbury Series Agreement is a primary operative fact in

the controversies; and the requisite “related to” nexus is evident because each of

Woods’s claims is “related to” the CQuentia/Cadbury Series Agreement in that the

facts alleged in support of Woods’s claims cannot stand alone, completely

independent of the CQuentia/Cadbury Series Agreement, and the claims could not be

maintained without reference to it. See Pinto Tech. Ventures, L.P., 526 S.W.3d at 439–

40. Accordingly, we hold that Cross-Appellant Woods’s claims fall within the scope

of the CQuentia/Cadbury Series Agreement’s forum-selection clause, and we sustain

the portions of Cross-Appellant Woods’s first issue so asserting.

3. Intervenor Meeker’s Claims

Looking to the substance of Intervenor Meeker’s live pleading, he factually

pleaded the following: that he operates CQuentia Series, LLC and that he discussed a

potential arrangement with Woods for Woods to supply marketing and sales services

to CQuentia; that he discussed with Woods, Rieder, and Rapee the creation by

Woods, Rieder, and Rapee of a sales organization that would market and sell

CQuentia’s genetic testing products; and that, ultimately, he was informed that

Woods, Rieder, and Rapee had created Cadbury for this purpose. According to

Meeker’s pleading, Rieder and Rapee promised to bring in voluminous deal flow to

the CQuentia/Cadbury Series Agreement, but they never did. Meeker pleaded that he

later learned that Cadbury had not become operational and had in fact entered into 27 the CQuentia/Cadbury Series Agreement before Cadbury’s own Operating

Agreement was executed. Consequently, Meeker––on behalf of CQuentia––

terminated the CQuentia/Cadbury Series Agreement and decided to move forward

with Woods as the provider of marketing and sales services to CQuentia “inasmuch as

their relationship predated Cadbury.”

Intervenor Meeker pleaded for two declaratory judgments. First, Intervenor

Meeker requested a declaration that he and any entity he operates has the right to

utilize Woods’s services without incurring liability under paragraph 12 of the Cadbury

Operating Agreement and, second, he sought a declaration that, as the CEO of

CQuentia, he had the right to end the CQuentia/Cadbury Series Agreement under

paragraph 5(c) of the CQuentia/Cadbury Series Agreement.

In their second and third issues, respectively, Appellants Rieder, Rapee, and

Cadbury argue that the trial court should have dismissed Intervenor Meeker’s first

claim for declaratory relief—regarding his right to hire Woods without incurring

liability under the Cadbury Operating Agreement—for lack of personal jurisdiction or

forum non conveniens and that the trial court should have dismissed or severed

Intervenor Meeker’s second claim for declaratory relief—regarding his right to

terminate the CQuentia/Cadbury Series Agreement. According to Rieder, Rapee, and

Cadbury, Intervenor Meeker’s first claim belongs in the Wisconsin court because it is

related to the viability of the Cadbury Operating Agreement and because Rieder,

28 Rapee, and Cadbury are Wisconsin residents.19 Rieder, Rapee, and Cadbury further

argue that Intervenor Meeker’s second declaratory judgment claim—regarding his

right to terminate the CQuentia/Cadbury Operating Agreement—should be

dismissed or severed and abated pending the outcome of the Wisconsin suit.

Intervenors—as appellees in Rieder, Rapee, and Cadbury’s appeal—contend in their

fifth responsive issue that we lack jurisdiction to review Rieder, Rapee, and Cadbury’s

motion to sever because the trial court never ruled on it.

Our analysis of whether Intervenor Meeker’s claims against Rieder, Rapee, and

Cadbury fall within the scope of the CQuentia/Cadbury Series Agreement’s forum-

selection clause mirrors the scope-of-the-forum-selection-clause analysis we

performed to determine whether Woods’s claims against Rieder, Rapee, and Cadbury

fell within the scope of the forum-selection clause. We first look to the factual

allegations supporting Intervenor Meeker’s complaints to determine whether—

engaging in a common-sense examination of the substance of them—they involve the

validity, terms, or performance of the CQuentia/Cadbury Series Agreement or have a

substantial connection to it. See id.

Rieder, Rapee, and Cadbury also assert that Intervenor Meeker’s first 19

declaratory judgment claim is an “anticipatory suit” that should be treated differently under a forum-selection-clause analysis. But we apply the same analysis to determine whether Intervenor Meeker’s claim for declaratory relief (anticipatory or not) falls within the scope of the CQuentia/Cadbury Series Agreement’s forum-selection clause as we apply to determine whether any other claim falls within the scope of a particular forum-selection clause. See, e.g., Bloom Business Jets, LLC, 522 S.W.3d at 770 (explaining that declaratory relief could be sought in contractually agreed-to forum).

29 A review of the factual allegations in Intervenor Meeker’s live pleading against

Rieder, Rapee, and Cadbury shows that his two claims for declaratory judgment are

premised on the same operative facts. The substance of Intervenor Meeker’s

request—for a declaratory judgment that he and any entity he operates may continue

to utilize Woods’s services without running afoul of the Cadbury Operating

agreement—is factually intertwined with the CQuentia/Cadbury Series Agreement; if

Cadbury had not entered into the CQuentia/Cadbury Series Agreement, no basis

would exist for Cadbury to threaten litigation against CQuentia based on Woods’s

work for CQuentia.

Applying the “related to” nexus required by the CQuentia/Cadbury Series

Agreement’s forum-selection clause, we hold that Intervenor Meeker’s petition reveals

the central role the CQuentia/Cadbury Series Agreement plays in both of his

declaratory-judgment claims. Intervenor Meeker’s declaratory-judgment claims are at

least “related to” the CQuentia/Cadbury Series Agreement because that agreement

governs any relationship that exists between Meeker and Rieder, Rapee, and Cadbury.

Absent the CQuentia/Cadbury Series Agreement, Meeker would have no relationship

with Rieder, Rapee, and Cadbury, and no controversy between them would exist. See

id.; see also Harland Clarke Holdings Corp., 997 F. Supp. 2d at 575 (explaining plaintiff’s

claims “are related to the Purchase Agreement, the Guarantee, and the transactions

contemplated thereby (i.e., the purchase of GlobalScholar) and thus fall within the

scope of the mandatory forum-selection clause”); Longoria, 470 S.W.3d at 628 30 (collecting cases involving forum-selection clauses covering claims “related to” forum-

selection-clause-containing contracts). We hold that Intervenor Meeker’s two claims

for declaratory relief fall within the scope of the CQuentia/Cadbury Series

Agreement’s forum-selection clause. See, e.g., JFP Servs., L.L.C., 2018 WL 3326841, at

*7 (“Texas courts interpret the phrase ‘relate to’ . . . [as] signif[ying] an intent to

encompass ‘all claims that have some possible relationship with the agreement.’”).

We overrule Appellants Rieder, Rapee, and Cadbury’s second issue arguing that

the trial court should have dismissed Intervenor Meeker’s first claim for declaratory

relief—regarding his right to hire Woods without incurring liability under the Cadbury

Operating Agreement—for lack of personal jurisdiction because that claim falls within

the scope of the forum-selection clause. See, e.g., Bloom Bus. Jets, 522 S.W.3d at 770.

Because—as pointed out by Intervenors—Appellants Rieder, Rapee, and Cadbury did

not set a hearing on their motion to sever and abate Intervenor Meeker’s second claim

for declaratory relief regarding his right to terminate the CQuentia/Cadbury Series

Agreement and because the trial court did not rule on it, Appellants Rieder, Rapee,

and Cadbury’s complaint that the trial court did not grant that motion is not properly

before us. See Tex. R. App. P. 33.1 (stating that to “preserve a complaint for appellate

review, the record must show . . . that the trial court . . . ruled on the request . . . either

expressly or implicitly”). We therefore also overrule the portions of Appellants

Rieder, Rapee, and Cadbury’s second and third issues arguing that the trial court

should have dismissed or severed and abated Intervenor Meeker’s second claim for 31 declaratory relief—regarding his right to terminate the CQuentia/Cadbury Series

Agreement––pending the outcome of the Wisconsin suit.

4. Intervenor CQuentia’s Claims

In a portion of Appellants Rieder and Rapee’s first issue, they argue that the

trial court erred by denying their special appearance and forum non conveniens

motion as to Intervenor CQuentia’s claims for fraud, fraudulent inducement, and

negligent misrepresentation.20 Our analysis of whether Intervenor CQuentia’s claims

against Rieder and Rapee fall within the scope of the CQuentia/Cadbury Series

Agreement’s forum-selection clause mirrors the scope-of-the-forum-selection-clause

analysis we performed to determine whether Cross-Appellant Woods’s and Intervenor

Meeker’s claims against Rieder, Rapee, and Cadbury fell within the scope of the

forum-selection clause.

Intervenor CQuentia pleaded that the trial court possessed personal jurisdiction

over Rieder, Rapee, and Cadbury because “this matter is related to a contract signed

by Defendant Cadbury in which such defendant ‘irrevocably’ consented to the

personal jurisdiction of this Court” and because “[a]ccording to Defendants Rieder

and Rapee, they were managing members of Defendant Cadbury when this

irrevocable consent was provided.” Intervenor CQuentia’s claims for fraud,

20 As previously mentioned, Cadbury agrees that Intervenor CQuentia’s claims against it fall within the CQuentia/Cadbury Series Agreement’s forum-selection clause.

32 fraudulent inducement, and negligent misrepresentation pleaded against Rieder and

Rapee are each factually premised on allegations that Rieder and Rapee had

represented to Intervenor CQuentia that they possessed “substantial contacts in the

medical field[] and both could and would generate significant business for CQuentia,

if an agreement could be struck among the parties.” Intervenor CQuentia pleaded

that Rieder, Rapee, and Woods formed Cadbury and were managing members of

Cadbury but that “none of the voluminous deal flow promised by Rieder and Rapee

ever materialized.”

A common-sense view of the factual basis for Intervenor CQuentia’s claims

shows that Intervenor CQuentia’s fraud, fraudulent inducement, and negligent

misrepresentation claims all revolve around the CQuentia/Cadbury Series Agreement;

Rieder’s and Rapee’s alleged conduct and representations to Intervenor CQuentia to

facilitate the CQuentia/Cadbury Series Agreement; and Rieder’s, Rapee’s, and

Woods’s creation of Cadbury via the Cadbury Operating Agreement for the purpose

of entering into the CQuentia/Cadbury Series Agreement. See Pinto Tech. Ventures,

L.P., 526 S.W.3d at 440. Intervenor CQuentia’s allegations of various misconduct

against Rieder and Rapee are “inextricably enmeshed” in or “factually intertwined”

with the CQuentia/Cadbury Series Agreement, as well as with the Cadbury Operating

Agreement. See id. Concerning the required “related to” relationship utilized to

analyze whether the substance of Intervenor CQuentia’s pleaded theories of recovery

against Rieder and Rapee fall within the scope of the forum-selection clause, the 33 requisite “related to” nexus is evident. As with Intervenor Meeker’s claims,

Intervenor CQuentia’s pleaded claims against Rieder and Rapee involve the validity,

terms, or performance of the CQuentia/Cadbury Series Agreement or have “some

possible relationship” with it. See, e.g., JFP Servs., L.L.C., 2018 WL 3326841, at *7.

The CQuentia/Cadbury Series Agreement creates and governs any possible

relationship that exists between Intervenor CQuentia and Rieder and Rapee and apart

from the CQuentia/Cadbury Series Agreement, no controversy would exist between

them. See Personal Security & Safety Sys., Inc., 297 F.3d at 393 (recognizing that

arbitration clause’s language subjecting all disputes related to the arbitration-clause-

containing contract to arbitration included any fraudulent misrepresentations made

during negotiations leading up to the contract). The trial court thus properly

concluded that Intervenor CQuentia’s claims against Rieder and Rapee individually

fell within the scope of the CQuentia/Cadbury Series Agreement’s forum-selection

clause. Accordingly, we overrule the portion of Appellants Rieder, Rapee, and

Cadbury’s first issue arguing that Intervenor CQuentia’s claims against Rieder and

Rapee do not fall within the scope of the forum-selection clause.

C. Can Cross-Appellant Woods, Intervenor Meeker, and Intervenor CQuentia Enforce the Forum-Selection Clause Against Rieder and Rapee Individually?

Although we have held that Cross-Appellant Woods’s, Intervenor Meeker’s,

and Intervenor CQuentia’s claims all fall within the scope of the CQuentia/Cadbury

Series Agreement’s forum-selection clause, Rieder and Rapee argue that Cross- 34 Appellant Woods, Intervenor Meeker, and Intervenor CQuentia cannot enforce the

forum-selection clause against them individually because they are corporate officers of

Cadbury who did not sign the CQuentia/Cadbury Series Agreement.21

1. The Parties’ Positions

Cross-Appellant Woods contends in his pleading and on appeal that he can

enforce the CQuentia/Cadbury Series Agreement’s forum-selection clause against

Rieder and Rapee because Rieder and Rapee “expressly consented to the exclusive

jurisdiction, forum, and venue in Tarrant County by virtue of the forum-selection

clause in the CQuentia/Cadbury Series Agreement.” Cross-Appellant Woods points

out the following: that Rieder and Rapee were managing board members of Cadbury;

that Cross-Appellant Woods had signed the CQuentia/Cadbury Series Agreement on

behalf of Cadbury; that the Cadbury Operating Agreement required that all three

Cadbury managing board members (i.e., Woods, Rieder, and Rapee) approve

Cadbury’s agreement to the CQuentia/Cadbury Series Agreement; and that Woods’s

action alone could not bind Cadbury. Based on these facts, Cross-Appellant Woods

alleges that Rieder and Rapee (as managing board members of Cadbury, which under

Rieder and Rapee’s theory became operational) must have consented (as required by

21 Rieder and Rapee cite Kelly v. Gen. Interior Constr., Inc., 262 S.W.3d 79, 83 (Tex. App—Houston [14th Dist.] 2008), rev’d in part on other grounds, 301 S.W.3d 653 (Tex. 2010), for the proposition that “[a] corporate officer who signs a contract on behalf of his corporation is not a party to the contract, but acting in his corporate capacity. Such act does not constitute a contact for purposes of personal jurisdiction.” Kelly addresses minimum contacts, not forum-selection clauses.

35 the Cadbury Operation Agreement) to Cadbury’s execution of the CQuentia/Cadbury

Series Agreement that contains the forum-selection clause. Cross-Appellant Woods

then argues that Rieder and Rapee, individually as managing board members of

Cadbury who consented to the CQuentia/Cadbury Series Agreement, are “transaction

participants” in the CQuentia/Cadbury Series Agreement against whom it was

foreseeable that the CQuentia/Cadbury forum-selection clause would be enforceable

and that, therefore, they are bound by it. Intervenors expressly adopt Cross-Appellant

Woods’s arguments and the evidence supporting his contentions that “the forum-

selection clause requires that a Texas court adjudicate Intervenors’ claims against all

Defendants.”

2. Cross-Appellant Woods’s Enforcement of the Forum-Selection Clause Against Rieder and Rapee Individually

The Cadbury Operating Agreement governing the relationship between

Woods, Rieder, and Rapee as co-managers and board members of Cadbury provides

in paragraph 8(d) as follows:

Board Exculpation. No Board Member, officer, or agent appointed by the Board, individually or severally, will be liable, responsible, or accountable in damages or otherwise to the Company or to any Member for any acts performed or omitted by him or her related to the Company, except: (i) for any breach of the Board Member’s duty of loyalty to the Company or its Members; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for breaches of this Agreement; or (iv) for any transaction from which the Board Member derived an improper personal benefit. Each of the persons referenced above in this section is an express third-party beneficiary of this section. [Emphasis added.]

36 As set forth in paragraph 8(d), Rieder and Rapee (to the extent Cadbury became

operational) agreed in the Cadbury Operating Agreement that, as board members of

Cadbury, they could be held liable to each other and to Cross-Appellant Woods

individually for acts performed or omitted by them relating to Cadbury and

constituting a breach of the duty of loyalty, for acts or omissions not in good faith or

which involved intentional misconduct, for breaches of the Cadbury Operating

Agreement, and for any transaction from which they derived an improper personal

benefit. Thus, the three Cadbury managing board members—Rieder, Rapee, and

Woods—contractually agreed in the Cadbury Operating Agreement that they could be

sued by each other in their individual capacities under certain circumstances. Cross-

Appellant Woods’s claims against Rieder and Rapee individually—for declaratory

judgment, for tortious interference, for fraud, and for breach of the Cadbury

Operating Agreement—allege such circumstances.

The intent of the parties—as reflected by construing the CQuentia/Cadbury

Series Agreement and the Cadbury Operating Agreement together, including the

forum-selection clause and paragraph 8(d), respectively—was for the agreements to

apply to the type of claims that Cross-Appellant Woods alleges against Rieder and

Rapee individually and was for those claims to be determined in Tarrant County. See

Pinto Tech. Ventures, L.P., 526 S.W.3d at 432; Laibe Corp., 307 S.W.3d at 317; Fort Worth

ISD, 22 S.W.3d at 840. Rieder and Rapee agreed in paragraph 8(d) to be subject to

suit in their individual capacities by Cadbury board member Woods for acts or 37 omissions breaching their duties of loyalty to Cadbury (Cross-Appellant Woods’s

fraud claim), for breaching the Cadbury Operating Agreement (Cross-Appellant

Woods’s claim for declaratory judgment that the Cadbury Operating Agreement never

became effective or, alternatively, for breach of the Cadbury Operating Agreement),

and for acts or omissions not in good faith (Cross-Appellant Woods’s fraud and

tortious interference claims). Because, as set forth above in section IV.B.2., each of

Cross-Appellant Woods’s claims falls within the scope of the CQuentia/Cadbury

Series Agreement’s forum-selection clause and because, as set forth above in section

III.B., we construe the CQuentia/Cadbury Series Agreement together with the

Cadbury Operating Agreement such that Rieder, Rapee, and Woods agreed for such

controversies to be determined in Tarrant County, Texas, we hold that the trial court

abused its discretion by failing to enforce the forum-selection clause as to Cross-

Appellant Woods’s claims against Rieder and Rapee individually. We sustain the

remainder of Cross-Appellant Woods’s first issue.22

22 Because we have held that the forum-selection clause is enforceable as to Cross-Appellant Woods’s claims against Rieder and Rapee as individuals, we need not address Cross-Appellees Rieder, Rapee, and Cadbury’s specific and general jurisdiction minimum-contacts arguments. See Carlile Bancshares, Inc. v. Armstrong, Nos. 02-14-00014-CV, 02-14-00018-CV, 2014 WL 3891658, at *5 (Tex. App.—Fort Worth Aug. 7, 2014, no pet.) (mem. op.) (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 589–90, 111 S. Ct. 1522, 1525 (1991), and stating that the presence of a valid and enforceable forum-selection clause circumvents the need to conduct a due-process and minimum-contacts analysis because the clause acts as consent to jurisdiction in the contracted-for forum). 38 3. Cross-Appellant Woods, Intervenor Meeker, and Intervenor CQuentia can enforce the CQuentia/Cadbury Series Agreement’s Forum-Selection Clause Against Rieder and Rapee as Transaction Participants

Numerous Texas courts have recognized “the transaction-participant doctrine,”

which provides that courts may enforce a valid forum-selection clause against certain

“transaction participants” even if they are not actual signatories to the contract. JFP

Servs., L.L.C., 2018 WL 3326841, at *8 (citing Pinto Tech. Ventures, L.P., 526 S.W.3d at

444, describing doctrine, and collecting intermediate appellate cases). A transaction

participant may include an employee of one of the contracting parties who is

individually named by another contracting party in a suit arising out of the contract

containing the forum-selection clause. Pinto Tech. Ventures, L.P., 526 S.W.3d at 444–45

(citing Accelerated Christian Educ., Inc. v. Oracle Corp., 925 S.W.2d 66, 75 (Tex. App.—

Dallas 1996, no writ)). A transaction participant may also include nonsignatories to

the forum-selection-clause-containing contract who are signatories to additional

contracts relating to the contract in dispute. See, e.g., Monika L. Woodard, Ghosts Have

Rights Too! A New Era in Contractual Rights: Third-Party Invocation in Forum Selection

Clauses, 26 St. Thomas L. Rev. 467, 494 (2014) (explaining that “in order for a party to

assert rights under this standard, the party claiming the rights must have signed at

least one of the relating agreements, must show the agreements were executed

simultaneously, and must show the agreements were executed by identical—or similar

parties at the least—or were signed in collaboration to execute the same overall

purpose”). 39 Although Texas courts have not explicitly expanded the transaction-participant

analysis beyond the context of a nonsignatory defendant attempting to enforce a

forum-selection clause against a signatory plaintiff,23 federal courts and other states

have not so limited the doctrine. See, e.g., SSAB Ala., Inc. v. Kem-bonds, Inc., CV 17-

0175-WS-C, 2017 WL 6345809, at *3 n.3 (S.D. Ala. Dec. 12, 2017) (order) (collecting

cases and explaining that when “the alleged conduct of the nonparties is closely

related to the contractual relationship, a range of transaction participants, parties and

nonparties, should benefit from and be subject to forum selection clauses”); see also

Woodard, Ghosts Have Rights Too! A New Era in Contractual Rights: Third-Party Invocation

in Forum Selection Clauses, 26 St. Thomas L. Rev. at 487–95. To the contrary, most

federal courts have held that “the fact a party is a non[]signatory to an agreement is

insufficient, standing alone, to preclude enforcement of a forum[-]selection clause.”

Aguas Lenders Recovery Grp. v. Suez, S.A., 585 F.3d 696, 701 (2d Cir. 2009) (collecting

cases from the Third, Seventh, Eighth, Ninth, and Eleventh Circuit Courts of

Appeals).

Federal and state courts have also applied a “closely-related” doctrine to

determine whether a nonsignatory against whom the forum-selection clause is being

asserted is, in fact, closely related to a signatory of the forum-selection-containing

contract so that enforcement of the forum-selection clause against the nonsignatory is

23 See Pinto Tech. Ventures, L.P., 526 S.W.3d at 444 (declining to address issue); Carlile Bancshares, Inc., 2014 WL 3891658, at *16.

40 foreseeable by virtue of the nonsignatory’s relationship with the signatory. See,

e.g., Metro-Goldwyn-Mayer Studios Inc. v. Canal & Distrib. S.A.S., No. 07Civ.2918(DAB),

2010 WL 537583, at *5 (S.D.N.Y. Feb. 9, 2010) (mem. & order) (“Under New York

law, a signatory to a contract may invoke a forum[-]selection clause against a

non[]signatory if the non[]signatory is ‘closely related’ to one of the signatories such

that ‘enforcement of the forum[-]selection clause is foreseeable by virtue of the

relationship between the signatory and the party sought to be bound’”); see also

Manetti–Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 514 n.5 (9th Cir. 1988) (holding

forum-selection clause binds or benefits nonparties to the contract if their alleged

conduct is closely related to the contractual relationship); Harland Clarke Holdings

Corp., 997 F. Supp. 2d at 583–84 (setting forth Delaware’s three-step analysis to

determine whether a forum-selection clause is enforceable against a nonsignatory

based on the nonsignatory’s close relationship with a signatory). The closely-related

doctrine factually overlaps the transaction-participant doctrine. Compare Pinto Tech.

Ventures, L.P., 526 S.W.3d at 444–46 (discussing “transaction-participant” doctrine),

with Harland Clarke Holdings Corp., 997 F. Supp. 2d at 583–84 (discussing Delaware’s

“closely-related” doctrine).

Here, the CQuentia/Cadbury Series Agreement’s forum-selection clause may

be enforced by Cross-Appellant Woods, Intervenor Meeker, and Intervenor CQuentia

against Rieder and Rapee under either the transaction-participant doctrine or the

closely-related doctrine. As set forth in section IV.B.1., because the Cadbury 41 Operating Agreement and the CQuentia/Cadbury Series Agreement pertain to the

same transaction, they are construed together to determine the parties’ intent. See

Fort Worth ISD, 22 S.W.3d at 840 (explaining that instruments pertaining to same

transaction may be read together to ascertain parties’ intent, “even if the parties

executed the instruments at different times and the instruments do not expressly refer

to each other”). Rieder and Rapee signed the Cadbury Operating Agreement.

Because Rieder and Rapee were signatories to the Cadbury Operating Agreement,

which required them to approve Cadbury’s entry into the CQuentia/Cadbury Series

Agreement, and because the formation of Cadbury via the Operating Agreement was

accomplished for the purpose of entering into a business relationship with CQuentia,

enforcement of the forum-selection clause as binding on Rieder and Rapee comports

with the legitimate expectations of the parties as reflected in the entirety of their freely

negotiated transaction. Cf. Pinto Tech. Ventures, L.P., 526 S.W.3d at 444–45.24 We hold

that under the facts presented here, the CQuentia/Cadbury Series Agreement’s

forum-selection clause is binding on Rieder and Rapee as transaction participants.

Accordingly, we sustain Cross-Appellant Woods’s second and third issues.

24 Here, unlike in Pinto Tech. Ventures, L.P., the forum-selection clause does not expressly limit the parties bound by it. See 526 S.W.3d at 445 (explaining that forum- selection clause at issue there provided that it “shall inure to the benefit of and be binding upon, the successors, permitted assigns, legatees, distributes, legal representatives and heirs of each party and is not intended to confer upon any person, other than the parties and their permitted successors and assigns, any rights or remedies hereunder”) (emphasis added).

42 As for the closely-related doctrine, Rieder and Rapee’s close relationship with

Cadbury—who is a signatory of the CQuentia/Cadbury Series Agreement—is one of

the central disputes between the parties. Rieder and Rapee contend that they are

managing board members of Cadbury pursuant to the Cadbury Operating Agreement

and that the Cadbury Operating Agreement is valid and binding on Cross-Appellant

Woods, Rieder, and Rapee. Cross-Appellant Woods, Intervenor Meeker, and

Intervenor CQuentia, on the other hand, contend that the Cadbury managing board

members did not approve the CQuentia/Cadbury Series Agreement, so it “was never

born.” Under either circumstance, Rieder’s and Rapee’s conduct is closely related to,

if not determinative of, the contractual relationship (if any) that exists between

CQuentia and Cadbury via the CQuentia/Cadbury Series Agreement. That is, Rieder

and Rapee, as two of three managing board members of Cadbury, are so closely

related to signatory Cadbury that enforcement of the forum-selection clause against

them—to determine issues related to the validity of the CQuentia/Cadbury Series

Agreement—is foreseeable by virtue of that relationship. We hold that Intervenors

may enforce the CQuentia/Cadbury Series Agreement’s forum-selection clause

against Rieder and Rapee because they are managing board members of and closely

related to signatory Cadbury. We overrule the remainder of Rieder and Rapee’s first

and second issues asserting that the forum-selection clause is not enforceable against

them because they are nonsignatories.

43 V. Conclusion

We affirm in part and reverse in part. Having sustained Cross-Appellant

Woods’s first, second, third, and eighth issues, which are dispositive of his appeal, we

reverse the portion of the trial court’s order granting Rieder, Rapee, and Cadbury’s

special appearance as to, and dismissal of, Woods’s claims against them. Having

overruled Appellants Rieder, Rapee, and Cadbury’s three issues, we affirm the trial

court’s denial of Rieder, Rapee, and Cadbury’s special appearance and forum non

conveniens motion as to Meeker’s and CQuentia’s claims. We remand this case to the

trial court for further proceedings.

/s/ Sue Walker Sue Walker Justice

Delivered: October 18, 2018