Court of Appeals of Texas, Seventh District, Amarillo
IN RE ENERGY SERVICES ACQUISITIONS II, INC. AND TIMOTHY H. NESLER, RELATORS
CAMPBELL and PIRTLE and PARKER, JJ.
T. Campbell, Justice
ESA Acquisitions II, Inc. and Timothy H. Nesler (collectively
"ESA") filed a petition for a writ of mandamus
addressed to the Honorable Phil N. Vanderpool, Judge of the
223rd District Court of Gray County. The writ ESA seeks would
direct Judge Vanderpool to vacate a March 23, 2017 order
denying ESA's motion to transfer venue of a suit pending
in that court. ESA relies on a contractual venue clause and
section 15.020 of the Texas Civil Practice and Remedies
Code. Finding the record does not demonstrate
Judge Vanderpool clearly abused his discretion, we will deny
parties in interest are Jerry E. Carlson and Sherry A.
Carlson, husband and wife who reside in Gray County. The
Carlsons owned Dimension Pipeline, LLC, and in 2012 were
contacted by Nesler on behalf of ESA regarding the possible
sale of the company. The negotiations ripened into an
agreement, entitled "membership interest purchase
agreement, " for the sale of the company to ESA for $5
million. A preliminary form of the document specified a $5
million cash sales price. It contained a forum selection
clause fixing Texas as the jurisdiction to adjudicate
disputes. Venue was not mentioned.
to Jerry Carlson's affidavit, shortly before the sale was
to close ESA told him "there was an issue with [its]
funding availability." The Carlsons agreed to a bridge
financing arrangement by which ESA delivered at closing its
$5 million promissory note due ninety days from December 31,
2012. Related changes were incorporated into the final
document. Under its terms, during the bridge financing period
the Carlsons remained as managers of the company. The final
document retained the earlier version's Texas forum
selection clause and remained silent as to venue.
promissory note was attached as an exhibit to the final
agreement and incorporated by reference. Paragraph 3.5 of
the note provided:
3.5 Applicable Law and Venue. The Note shall be
interpreted, construed and governed by and in accordance with
the Laws of the State of Texas. The Parties hereto, for
themselves and their successors, assigns and any Holder in
due course, hereby consent to the exclusive jurisdiction of
the state and federal courts located in Harris County, Texas
with respect to any controversy relating to the Note.
parties executed the final agreement on December 28, 2012,
effective December 31. Nesler signed the note for ESA on
December 31. According to the Carlson affidavit, the note was
paid "on or before March 31, 2013."
the fall of 2016 an attorney representing Nesler and other
unidentified ESA shareholders sent two letters to the
Carlsons and an email to their attorney. In the
communications counsel expressed the belief that the Carlsons
had breached the agreement and fraudulently induced ESA into
the agreement. The letters suggested reimbursement of the $5
million purchase price, and threatened consideration of
"all potential remedies, " including legal action
against the Carlsons in a New York court.
November 17, 2016, the Carlsons filed a suit for declaratory
judgment in Gray County naming as defendants ESA, Nesler and
"John Doe" shareholders. The petition alleged
Nesler and the John Doe shareholders lacked standing to claim
breaches of the agreement. Otherwise, the Carlsons sought a
declaration that they did not breach the agreement.
on the mandatory venue provision of section
15.020(c)(2) and paragraph 3.5 of the note, ESA filed a
motion to transfer venue of the case to Harris County. The
motion asserted the sale of Dimension was a major transaction
and the Carlsons, by signing the agreement with the note
attached, agreed in writing to the note's ...