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In re Nationwide Insurance Company of America, et al., 15-0328 (TexApp Dist 06/24/2016)

Brian Besch formerly worked with relators as an independent agent. After the relationship ended, he sued several affiliates for breach of contract, fraud and occupational disparagement. During the employment period, the parties executed an agreement which contained a "Governing Law" provision whereby the agreement "shall be governed by the laws of the State of Ohio." Notwithstanding the provision, Besch filed the underlying lawsuit in Travis County, Texas. It was not until two years after initiation of the lawsuit that relators challenged the Texas jurisdiction. Besch's attorney expressed his belief that relators waived the clause when it obtained an agreed extension to answer. The trial court concluded that realtors' participation in the Texas litigation and its delay in asserting its rights under the forum-selection clause waived such rights; any dismissal would cause Besch to suffer prejudice as his claim would now be barred in Ohio. Following the court of appeals denial, relators sought mandamus relief from the Supreme Court. The Supreme Court granted the writ of mandamus and directed the trial court to enforce the forum-selection clause holding relators' participation in litigation did not subject Besch to prejudice and there remained seven months for him to refile his case the proper forum before the statute of limitations expired. Additionally, the Supreme Court held Besch failed to establish the mandatory forum-selection clause was waived or otherwise unenforceable. Therefore, the Supreme Court directed the trial court to enforce the parties' forum-selection clause. In re Nationwide Insurance Company of America, et al., Supreme Court, Case No.: 15-0328, 06/24/2016

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ON PETITION FOR WRIT OF MANDAMUS

Argued February 10, 2016

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