Argued: January 10, 2019
from the Madison Circuit Court, No. 48C01-1703-PL-19 The
Honorable Angela Warner Sims, Judge
Petition to Transfer from the Indiana Court of Appeals No.
ATTORNEY FOR APPELLANT Scott A. Norrick Scott A. Norrick,
P.C. Anderson, Indiana
ATTORNEY FOR APPELLEES Andrew F. Marquis Scopelitis Garvin
Light Hanson & Feary, P.C. Indianapolis, Indiana
that a valid forum-selection clause, in which the parties
agree by contract to litigate their disputes in a specific
forum, does not deprive a trial court of personal
jurisdiction over parties that would otherwise be subject to
the court's jurisdiction. Thus, the trial court erred in
dismissing the plaintiff's claims against the
Indiana-resident defendants under Trial Rule 12(B)(2). But we
nevertheless affirm the court's without-prejudice
dismissal on this record for two reasons. First, the disputed
forum-selection clause is mandatory and unambiguous in
requiring that suit be brought in Texas not Indiana. And,
second, the plaintiff has not satisfied its burden of showing
that the clause is invalid. Thus, the trial court was correct
to dismiss the amended Indiana complaint without prejudice,
though for a reason other than lack of personal jurisdiction.
and Procedural History
parties are in the transportation business. O'Bryant
Transport, LLC, and A.L.A. Trucking, Inc., entered into an
independent-contractor agreement. Under the agreement, A.L.A.
Trucking was seeking truck-driving services, and O'Bryant
Transport agreed to provide them. Their agreement contains a
forum-selection clause providing that the agreement was
prepared under Texas law; that the laws of "this
state" shall apply; and, relevant here, that suit must
be brought in "this state".
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 CARRIER [A.L.A. Trucking] may bring suit
against INDEPENDENT CONTRACTOR [O'Bryant Transport] in
any state where INDEPENDENT CONTRACTOR resides or is located.
than a year later, the plaintiff, Daniel O'Bryant,
alleged breach of contract and sued in the Circuit Court of
Madison County, Indiana. He claimed that A.L.A. Trucking
breached the agreement by treating him, apparently a
principal of O'Bryant Transport, as an A.L.A. employee
rather than an independent contractor and did not pay him
salary or benefits for most of the prior year. We say
"apparently" because the agreement lists the
contracting party as the LLC, a limited-liability company,
and shows Daniel as signing on its behalf. Yet the amended
complaint, the operative pleading here, recites Daniel as the
aggrieved party and lists the LLC as merely a "dba"
and not a separate legal entity. The lower courts did not
address Daniel's standing to sue for breach of an
agreement to which he is not a party. And neither shall we.
also sued for fraudulent inducement, alleging he was induced
to sign the agreement by A.L.A.'s "material
misrepresentations" concerning the work he was to do.
The suit named as defendants Alan P. Adams and Luan Adams, as
"owners"-presumably meaning shareholders-of A.L.A.
Trucking, Inc. The Adamses are residents of Indiana, and
A.L.A. Trucking is an Indiana for-profit corporation doing
business in Indiana. According to O'Bryant, the Adamses
are alter egos of A.L.A. Trucking, and he seeks to pierce the
corporate veil and hold them personally liable for any
obligations of the corporation. In the lawsuit's caption,
O'Bryant lists the counterparty, A.L.A. Trucking, as a
"dba" rather than the separate legal entity his own
complaint alleges it to be. Again, the lower courts ignore
this issue, and so shall we.
defendants moved to dismiss the amended complaint on two
separate grounds. The first, under Rule 12(B)(2), is that the
Indiana trial court lacked personal jurisdiction over these
defendants because the parties agreed to litigate their
dispute in Texas. The second ground, under Rule 12(B)(6),
seeks partial dismissal of the veil-piercing claims against
the Adamses because the allegations are insufficient to
subject them to liability for obligations of the corporation.
The other 12(B)(6) request is to dismiss count 2, the fraud
claim, because the plaintiff failed to plead fraud with the
specificity required by Rule 9(B).
objected to dismissal under Rule 12(B)(2), arguing that the
phrase "this state" within the forum-selection
clause refers not to Texas but Indiana; that the clause is
ambiguous and permissive; and that requiring Indiana parties
to litigate their dispute in Texas is unreasonable and
unjust. The trial court disagreed. It held that the
forum-selection clause is unambiguous and mandatory; that
"this state" refers to Texas; and that ...