Shamil Halabu v. Petroleum Wholesale, L.P.

• Court: Court of Appeals of Texas
• Decided: May 22, 2008
• Docket: 01-07-00614-CV
• Status: Published

Opinion

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Opinion Issued May 22, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00614-CV

SHAMIL HALABU, Appellant

V.

PETROLEUM WHOLESALE, L.P., Appellee

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Cause No. 2006-65581

MEMORANDUM OPINION

          Petroleum Wholesale (“Petroleum”) sued appellant, Shamil Halabu, for breach of contract, alleging that he had personally guaranteed a contract between Petroleum and USA Travel Center.  Halabu filed a special appearance in the trial court, asserting that it lacked personal jurisdiction over him and denying that he had signed the guarantee.  In his sole issue on appeal, Halabu contends that the trial court erred in denying his special appearance.  We affirm.

Background

          In August 2005, Petroleum and USA Travel entered into a “Fuel Marketing Location Agreement” (“FMLA”) whereby Petroleum agreed to sell motor fuels to USA Travel delivered to its place of business in Amarillo, Texas.  The FMLA contained a provision that stated that the agreement “shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Harris County, Texas.”[1]  The bottom of each page of the FMLA is initialed “SH.”  Page eleven of the agreement, entitled “GUARANTEE” contains a personal guarantee of payment and performance of the FMLA.  It is signed, with the signature block reading SHAMIL HALABU.  In 2006, Petroleum sued USA Travel for breach of contract, alleging that USA Travel “unilaterally ceased doing business with [Petroleum] and has failed and refused to pay the amounts owing,” and that Halabu guaranteed payment by signing the gurarantee. 

          Halabu filed a special appearance, contending that he does not do business in the State of Texas.  He further asserts that he did not sign the FMLA or the guarantee, nor did he authorize anyone to sign the guarantee on his behalf.  Halabu attached the affidavit of Sabah Senawi as evidence that he did not agree to the guarantee.  Senawi’s affidavit stated that USA Travel and Petroleum had agreed that no personal guarantee would be included in the contract.  Senawi further stated that he had met with Ken Dixon, an employee of Petroleum and signed the documents in his capacity as the corporate representative for USA Travel.  He contends that he did not read the documents and trusted that Dixon would present him with documents representing their true agreement.  Senawi further asserts that “Shamil Halabu was not present at this meeting and did not sign any of the documents entered into between the parties on August 17, 2005, nor did he direct me to sign on his behalf.”

          In response to Halabu’s special appearance, Petroleum filed the supporting affidavit of Ken Dixon.  Dixon stated that just prior to the signing of the FMLA and the personal guarantee, Senawi called Halabu on the telephone to discuss the FMLA and the personal guarantee.  According to Dixon, he had a telephone conversation the following day with Halabu, who told Dixon that Senawi had authority to sign the documents on his behalf and that he had reviewed the FMLA before it was signed.  At the special appearance hearing, Halabu objected to Dixon’s affidavit because it was not notarized and because it was not filed at least seven days before the hearing.  See Tex. R. Civ. P. 120a(3).  The trial court did not rule on the objection before denying Halabu’s special appearance.

Analysis

          In his sole issue, Halabu contends that the trial court erred in denying his special appearance.  Halabu also asserts that the trial court should not have considered Petroleum’s late-filed affidavit by Ken Dixon.

          Special appearances are governed by Rule 120a, which provides that “a special appearance may be made by any party . . . for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process by the courts of this State.”  Id. 120a. 

          On appeal we review de novo the trial court’s determination to grant or deny a special appearance.  Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).   The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provisions of the Texas long-arm statute.  BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002).  A nonresident defendant challenging the court’s exercise of personal jurisdiction through a special appearance carries the burden of negating all grounds for personal jurisdiction alleged by the plaintiff.  Id.; Glattly v. CMS Viron Corp., 177 S.W.3d 438, 446 (Tex. App.—Houston [1st Dist.] 2005, no pet.).  We review all evidence in the record to determine if the nonresident defendant negated all possible grounds.  N803RA, Inc. v. Hammer, 11 S.W.3d 363, 366 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (citing Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985)). 

Trial courts must frequently resolve questions of fact before deciding the jurisdictional question.  BMC Software, 83 S.W.3d at 794. When a trial court issues findings of fact and conclusions of law, we may review the findings of fact on legal and factual sufficiency grounds and review the conclusions of law de novo as a legal question.  Silbaugh v. Ramirez, 126 S.W.3d 88, 94 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing BMC Software, 83 S.W.3d at 794).  If the trial court does not issue findings of fact, “all facts necessary to support the judgment and supported by the evidence are implied.”  BMC Software, 83 S.W.3d at 795.  In other words, if the trial court does not issue findings of fact, a reviewing court should presume that the trial court resolved all factual disputes in favor of its judgment.  Tri-State Bldg. Specialties, Inc. v. NCI Bldg. Sys., L.P., 184 S.W.3d 242, 246 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Coleman, 83 S.W.3d at 806; BMC Software, 83 S.W.3d at 795).  We may set aside a finding of fact only if the evidence would not enable a reasonable and fair minded finder of fact to make the finding under review.  City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). 

          Two requirements must be met before a Texas court can exercise personal jurisdiction over a nonresident defendant.  First, the Texas long-arm statute must authorize the exercise of jurisdiction, and second, the exercise of jurisdiction must be consistent with the guarantees of due process.  Coleman, 83 S.W.3d at 806; Tri-State Bldg. Specialties, Inc., 184 S.W.3d at 248.

          With respect to personal jurisdiction, federal due process requires two things.  First, the nonresident defendant must have purposefully established such minimum contacts with the forum state that the defendant could reasonably anticipate being sued there.  Glattly, 177 S.W.3d at 446 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475–76, 105 S. Ct. 2174, 2183–84 (1985)).  Second, if the nonresident defendant has purposefully established minimum contacts with the forum, the exercise of personal jurisdiction must also comport with traditional notions of fair play and substantial justice.  Id. at 447 (citing Burger King, 471 U.S. at 475–76, 105 S. Ct. at 2183–84).  As to fairness, the defendant bears the burden of presenting a “compelling case” that exercising jurisdiction over him would not be fair or just.  See id. at 450.  Only in rare cases, however, will a Texas court’s exercise of personal jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state.  Guardian Royal Exch. Assur., Ltd. v. English Clays, P.L.C., 815 S.W.2d 223, 231 (Tex. 1991). 

Personal jurisdiction is a waivable requirement. Burger King, 471 U.S. at 473 n. 14, 105 S. Ct. at 2182 n. 14; Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinée, 456 U.S. 694, 703, 102 S. Ct. 2099, 2105 (1982). A forum-selection clause is one of several ways in which a litigant may expressly or impliedly consent to personal jurisdiction.  Abacan Technical Servs. Ltd. v. Global Marine Intern. Servs. Corp., 994 S.W.2d 839, 843 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (citing Burger King, 471 U.S. at 473 n. 14, 105 S. Ct. at 2182 n. 14).  Enforcement of a forum-selection clause is mandatory absent a showing that “enforcement would be unreasonable and unjust, or that the clause was invalid due to fraud or overreaching.”  In re Automated Collection Techs., Inc., 156 S.W.3d 557, 559 (Tex. 2004) (quoting In re AIU Ins. Co., 148 S.W.3d 109, 112 (Tex. 2004)).

Petroleum Wholesale premised jurisdiction on Halabu’s agreement to the forum-selection clause in the “Fuel Marketing Location Agreement,” which Halabu allegedly personally guaranteed.  Halabu contests enforcement of the clause designation performance in Harris County on the grounds that the personal guarantee was not part of the agreement, that he did not sign the personal guarantee, and that he did not authorize Senawi to sign it as his agent.  Halabu asserts that the evidence is insufficient to support a finding that he guaranteed the agreement and is therefore bound by the forum-selection clause.  Specifically, Halabu states that “Petroleum Wholesale had no evidence to challenge that produced by Halabu,” and thus, “the proof supports only one conclusion; the Trial Court did not have personal jurisdiction over Halabu.” 

Contrary to Halabu’s assertions, Petroleum Wholesale presented proof that Halabu agreed to be bound by the forum-selection clause: it provided the original contract and the guarantee with Halabu’s signature.  Even if we do not consider the late-filed affidavit, “the clause is prima facie valid and enforceable unless the opponent establishes a compelling reason not to enforce it.”  Abacan Technical, 994 S.W.2d at 843.  Although Halabu presented contradictory evidence to establish that Halabu did not sign the affidavit and did not authorize Senawi to sign the affidavit as his agent, it is the sole province of the fact-finder to resolve conflicts in the evidence.  See Benoit v. Wilson, 150 Tex. 273, 281–82, 239 S.W.2d 792, 796–97 (1951); Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 401 (Tex. App.—Houston [1st Dist.] 1993, writ dism’d w.o.j.).  The trial court had before it the signed agreement that included the forum-selection clause, as well as the signed personal guarantee.  The trial court reasonably could have disregarded Senawi’s affidavit that stated that he was not authorized to sign for Halabu and concluded that Halabu intended to agree to the forum-selection clause for purposes of personal jurisdiction.  Because it may be reasonably inferred from the evidence that Halabu agreed to be bound by the forum-selection clause, sufficient evidence supports the trial court’s findings.  See Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001) (if it may reasonably be inferred from the circumstantial evidence that one or more of the appellants assisted in the offense, then there is some evidence to support the jury’s verdict).

Conclusion

          We affirm the trial court’s order denying Halabu’s special appearance.

                                                          Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

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[1]               Halabu’s counsel attached an FMLA agreement for Arizona as an appendix to his brief.  This agreement, however, is not part of the record.  The agreement in this case, found in the clerk’s record page 42, contains the above-quoted language in paragraph 29, entitled “TEXAS LAW TO APPLY.”