Supreme Court Throws Out Case of 80-Year Old Woman

Photo of Jay Jackson

Last month, the Texas Supreme Court threw out a case brought by an 80-year old woman in poor health, and told her to sue in Illinois. The case arose from the losses the woman sustained in her investment account. She sued her commodities broker and its agent. The Texas trial court overruled the broker's motion to dismiss based upon a forum selection clause permitting it to be sued in Illinois. The Supreme Court granted mandamus, and ordered the trial court to dismiss the case, because the plaintiff "did not overcome the presumption against the [broker's] waiving its right to enforce the forum-selection clause, or satisfy her burden to demonstrate that enforcing the clause would be unreasonable and unjust."

The opinion was issued in the case of In re ADM Investor Services, Inc., ___ S.W.3d ___ (Tex. 2010)(2/19/10). The court focused upon the forms signed when the brokerage account was opened, years before, which gave the broker the right to be sued in Illinois. "We have consistently granted petitions for writ of mandamus to enforce forum-selection clauses because a trial court that improperly refuses to enforce such a clause has clearly abused its discretion."

The woman's lawyer argued that the defendant had waived its right by failing to obtain a hearing on the matter for three months. Disagreeing, the court ruled that there was no waiver of the forum selection clause. "A party waives a forum-selection clause by substantially invoking the judicial process to the other party's detriment or prejudice. There is a strong presumption against such waiver." Merely "participating in litigation does not categorically mean the party has invoked the judicial process so as to waive enforcement. Waiver can be implied from a party's unequivocal conduct, but not by inaction." Moreover, here the local agent's conduct in filing a separate suit in Texas did not constitute waiver because that was not within the scope of its grant of authority from the broker.

"A trial court abuses its discretion in refusing to enforce a forum-selection clause unless the party opposing enforcement of the clause can clearly show that (1) enforcement would be unreasonable or unjust, (2) the clause is invalid for reasons of fraud or overreaching, (3) enforcement would contravene a strong public policy of the forum where the suit was brought, or (4) the selected forum would be seriously inconvenient for trial. The burden of proof is heavy for the party challenging enforcement. When inconvenience in litigating in the chosen forum is foreseeable at the time of contracting, the challenger must 'show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.'"

Here, the court said that the woman failed to carry her "heavy burden." She did not prove that she "could not proceed in Illinois." In fact, she had filed an affidavit showing that she "was nearing the age of 80, suffered chronic health problems including fibromyalgia and heart problems, often had difficulty walking, and had been hospitalized several times in recent months." However, this does not show that the forum she agreed to in 2001 "would be unreasonable or unjust." Her "conclusory statements are insufficient to establish such inconvenience."

The result is that the woman is bound by the forms signed when the brokerage account was opened, and cannot litigate her rights here in Texas, even though she is now older and in failing health.

No Comments

Leave a comment
Comment Information

Awards & Recognition

  • 2016-2017 Equal Access to Justice Champion

    The Equal Access to Justice Champions Program was started by the Houston Bar Association in 2006, to help ensure placement of Houston Volunteer Lawyers cases with pro bono volunteers. Originally, firms were tiered according to size, and firms within each tier committed to accept a certain number of pro bono cases from HVL each year for five years.

  • The National Trial Lawyers | Top 100 Trial Lawyers

    The National Trial Lawyers: Top 100 is an invitation-only organization composed of the premier trial lawyers from each state or region who meet stringent qualifications as civil plaintiff and/or criminal defense trial lawyers. Selection is based on a thorough multi-phase objective and uniformly applied process which includes peer nominations combined with third-party research.

  • Million Dollar Advocates Forum

    Established in 1993, the Million Dollar Advocates Forum (which includes the Multi-Million Dollar Advocates Forum) is one of the most prestigious groups of trial lawyers in the United States. Membership is limited to attorneys who have won million and multi-million dollar verdicts and settlements. There are over 4000 members throughout the country. Fewer than 1% of U.S. lawyers are members.

  • Recognized by Best Lawyers America | Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz | 2017

    Recognition by Best Lawyers is based entirely on peer review. Their methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.

  • Lead Counsel Rated

    In order to earn the Lead Counsel Rating, an attorney must not only demonstrate significant legal experience, but must also receive multiple peer recommendations advocating his or her ability. This is a key component in the screening process.

  • Texas Super Lawyers | Texas Monthly

    Each year, Super Lawyers recognizes the top lawyers in Texas via a patented multiphase selection process involving peer nomination, independent research and peer evaluation. The Texas lawyers who receive the highest point totals during this selection process are further recognized in Texas Super Lawyers Top Lists.

Get Your Free Case Review 713.587.9668

Let Us Help You Today! Request a Free Consultation

Bold labels are required.

Contact Information

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.


Privacy Policy

  • $50+ Million Personal Injury Fire and Explosion

    The firm successfully represented nearly 100 victims who suffered personal injuries and damages to property from a large fire and explosion resulting in a settlement of more than $50 million. The firm served as lead lawyers on the steering committee in this litigation.

  • $80 Million Personal Injury Large Plant Explosion

    The firm successfully represented 270 plaintiffs', taking a lead role in the plaintiffs' steering committee, who suffered injuries in a large plant explosion resulting in a settlement of nearly $80 million.

  • $50+ Million Personal Injury Plant Fire and Explosion

    The firm successfully represented 45 personal injury victims in a plant fire and explosion, serving on the plaintiffs' steering committee, concluding with a settlement of more than $50 million.

  • $22+ Million Personal Injury Work Site Accident

    The firm prevailed in a personal injury trial for a worksite injury client with the jury returning a verdict and resulting in a judgment of over $22 million for the firm's client.

  • $12 Million Auto Accident 18-Wheeler Collision

    The firm successfully achieved a $12 million settlement for the family of a man who died in an 18 wheeler collision.

  • $30 Million Personal Injury Burn Victims

    The firm prevailed on behalf of three burn victims with settlements totaling nearly $30 million.

Our Record Of Success.

When you are hurt and you choose a law firm to represent you in court or at the negotiation table, you need to carefully consider the firm's record.

More Success Stories