Daniel T. O'Bryant, D.B.A. O'Bryant Transport LLC, Appellant-Defendant,
Alan P. Adams, Luan Adams, D.B.A., A.L.A. Trucking, Inc., Appellee-Plaintiff
from the Madison Circuit Court Trial Court Cause No.
48C01-1703-PL-19 The Honorable Angela Warner Sims, Judge.
Attorney for Appellant Scott A. Norrick Attorney at Law, P.C.
Attorneys for Appellee Andrew F. Marquis Scopelitis, Garvin,
Light, Hanson & Feary, P.C. Indianapolis, Indiana
Daniel T. O'Bryant, doing business as O'Bryant
Transport, LLC (collectively "O'Bryant"),
appeals the trial court's dismissal of its claims against
Alan P. Adams and Luan Adams, doing business as A.L.A.
Trucking, Inc. (collectively "ALA"). The trial
court dismissed the case because the contract between
O'Bryant and ALA required any litigation resulting from
the parties' agreement to be filed in Texas. Because that
forum selection clause is valid and enforceable, we affirm
the trial court's dismissal of O'Bryant's claims.
and Procedural History
Both O'Bryant and ALA are located in and do business in
Indiana. On December 15, 2015, O'Bryant and ALA entered
into an Independent Contractor Agreement
("Agreement") under which O'Bryant was to
provide "transportation related services and the
Equipment" in return for certain compensation by ALA.
(App. Vol. II at 98.) O'Bryant agreed to provide drivers
and equipment, and he was also required to ensure compliance
with state laws. ALA agreed to treat O'Bryant as an
independent contractor rather than an employee and to
compensate O'Bryant with "80% of gross receipts and
100% of fuel surcharge, per load [after] withhold[ing] 3
cents per mile[.]" (Id. at 108.)
The Agreement included a forum selection clause
("FSC") that stated:
19. COMPLETE AGREEMENT. This Agreement, including any
Appendices attached, constitutes the sole, entire, and
existing agreement between the parties herein, and supersedes
all prior agreements and undertakings, oral and written,
expressed or implied, or practices, between the parties, and
expresses all obligations and restrictions imposed on each of
the respective parties during its term, except those
specifically modified or changed by mutual written agreement
between [ALA] and [O'Bryant]. This Agreement shall be
deemed to have been drawn in accordance with the statutes and
laws of the State of Texas and in the event of any
disagreement or litigation, the laws of this state shall
apply and suit must be brought in this state, except that
[ALA] may bring suit against [O'Bryant] in any state
where [O'Bryant] resides or is located.
(Id. at 105.)
On March 16, 2017, O'Bryant filed a complaint against ALA
in Madison County, Indiana. On May 5, 2017, O'Bryant
amended the complaint. O'Bryant alleged ALA had breached
the Agreement by, instead of reimbursing O'Bryant as an
independent contractor pursuant to Section 7 and Appendix B
of the Agreement, O'Bryant had worked at ALA's
"office, as Operations Manager, without employee salary
or benefits, throughout the majority of the year
2016[.]" (Id. at 95.) O'Bryant alleged ALA
had breached the contract "by failing and refusing to
perform in good faith their promise to insure [sic] return of
equity, payment for work, fees, costs and expenses."
(Id.) O'Bryant also alleged ALA fraudulently
induced O'Bryant to sign the Agreement by making
"material misrepresentations" regarding the work
O'Bryant was to do and the outcome of his investments.
(Id. at 96.)
On May 26, 2017, ALA filed a motion to dismiss in which ALA
asserted: 1) pursuant to Trial Rule 12(B)(2),
O'Bryant's claim in Indiana was barred because the
FSC controlled "regarding personal jurisdiction,"
(id. at 80) (formatting altered), and O'Bryant
could only file a claim in Texas per the FSC; and 2) pursuant
to Trial Rule 12(B)(6), O'Bryant's complaint failed
to state a claim for which relief could be granted. While
also responding with arguments about personal jurisdiction
doctrines and forum non conveniens, O'Bryant
filed an answer to ALA's reply arguing the FSC was
ambiguous and therefore permissive, rather than mandatory.
O'Bryant argued that, when signing the Agreement in
Indiana, O'Bryant understood the reference to "this
state" in section 19 to indicate Indiana. (Id.
at 42.) O'Bryant argued the phrase "suit must be
brought in this state," (id. at 105),
"neither identifies a venue nor contains a specific
grant of exclusivity." (Id. at 43.) He
contended that because the FSC is permissive and inadequate,
the case is properly brought in Indiana, where both parties
are located and do business. ALA countered that "this
state," (id. at 105), is in the same sentence
as "laws and statutes of Texas," (id.);
thus, "this state," (id.), must refer to
Texas and not Indiana. The trial court held a hearing on
ALA's motion on August 15, 2017.
On August 31, 2017, finding the parties were "all either
businesses or the owners thereof," (id. at 14),
the trial court granted ALA's motion based on its
allegations under Indiana Trial Rule 12(B)(2) pertaining to
jurisdiction. The trial court found and concluded:
[O'Bryant] contends that the forum selection provision
should not be enforced because it is ambiguous and
permissive. However, the Court finds that the provision is
unambiguous and mandatory. The provision specifically states
that the agreement is drawn in accordance with the statutes
and laws of the State of Texas and then refers back to the
State of Texas within the same sentence by using the term
"this state." The only logical conclusion to the
meaning of "this state" is that it refers to the
State of Texas. Furthermore, the provision uses the mandatory
language "must be brought" when requiring the suit
to be litigated in the State of Texas. This language
"precludes the possibility of venue in any other
forum." See Coral Chemical Co. v. Chemetall U.S.,
Inc., Cas No. 16-cv-23, 2016 WL 3521952, *7 (S.D. Ind.
June 28, 2016).
The Court also finds that [O'Bryant] has failed to
demonstrate that the forum selection provision is
unreasonable and unjust under the circumstances, and that
there is any evidence of fraud or overreaching. In fact,
[O'Bryant] gives little attention to these elements in
his responsive filings other than to make the blanket
statements that the forum selection provision is (1)
"based on the fraudulent conduct of [ALA]"; (2)
"enforcement of that clause would be unreasonable and
unjust"; and (3) "[ALA], . . ., have merely
inserted that permissive clause to avoid litigation by
causing inconvenience." See [O'Bryant]'s Answer
to [ALA]s' Motion to Dismiss Amended Complaint, p. 2;
[O'Bryant]'s Answer to [ALA's] Reply in support
of Motion to Dismiss Amended Complaint, p. 7, footnote 1.
These assertions alone failed to give the Court any grounds
on which to find the forum selection provision unenforceable.
Moreover, the Court finds that the provision was freely