IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 05-0311

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In re AutoNation, Inc. And Auto M. Imports North, Ltd., = d/b/a=20 Mercedes-Benz of Houston-North, Relators

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On Petition for Writ of = Mandamus

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Argued October 19,=20 2006

=20 Justice=20 O=92Neill, concurring.

I = agree that=20 forum-selection clauses are presumed valid and enforceable unless the = opposing=20 party can clearly show that (1) enforcement would be unreasonable or = unjust, (2)=20 the clause is invalid for reasons of fraud or overreaching, (3) = enforcement=20 would contravene a strong public policy of the forum where the suit was = brought,=20 or (4) the selected forum would be seriously inconvenient for trial. = See In=20 re AIU Ins. Co., 148 S.W.3d 109, 111-12 (Tex. 2004) (citing M/S Bremen v. Zapata = Off-Shore=20 Co., 407 U.S. = 1, 13-15=20 (1972)); In re Prudential Ins. Co. of Am., 148 S.W. 3d 124, = 134-35=20 (Tex. 2004).=20 As Hatfield raises only the public-policy exception, we are not = confronted with=20 potentially serious fundamental-fairness concerns that might arise = should the=20 forum selected be chosen by unfair means or prove inaccessible. See, e.g., Stobaugh v.=20 Norwegian Cruise Line Ltd., 5 S.W.3d 232, 234-36 (Tex. = App.=97Houston [14th=20 Dist.] 1999, pet. denied). Hatfield=92s sole contention is that = the strong=20 public-policy concerns we articulated in DeSantis will be undermined if the = parties=92=20 forum-selection clause is enforced and the suit to enforce the covenant = not to=20 compete proceeds in Florida. DeSantis v. Wackenhut=20 Corp., 793 S.W.2d 670, 680 (Tex. 1990) (=93[T]he law governing = enforcement of=20 noncompetition agreements is fundamental = policy in=20 Texas, and [] to apply the law of another state to determine the = enforceability=20 of such an agreement in the circumstances of a case like this would be = contrary=20 to that policy.=94).

=20 I agree with Hatfield that deciding which noncompete agreements constitute reasonable = restraints of=20 trade on employees in this state is a matter of fundamental Texas public = policy.=20 See id. What is not apparent, however, is that enforcement of the = forum-selection clause in this case will result in application of the=20 contractual forum=92s law in a manner that will undermine Texas public = policy.=20 See Tex. Bus. & Com. Code =A7=A7 15.50-15.52=20 (Covenants Not to Compete Act); Alex Sheshunoff=20 Mgmt. Servs., L.P. v. Johnson, 209 = S.W.3d 644=20 (Tex.=20 2006). Had there been a clear showing to this = effect, I=20 might agree with the court of appeals=92 analysis, or at least would = consider the=20 trial court justified had it decided to abate the Texas declaratory judgment action pending the = Florida = court=92s decision.=20 But a mere indication that the Florida court intends to apply Florida = law does=20 not, without more, justify a Texas court=92s interference with the = parties=92 chosen=20 forum. For this reason, I concur in the Court=92s judgment.

=20 =20 =20 =20 =20 =20 ___________________________________

=20 =20 =20 =20 =20 =20 Harriet O=92Neill

=20 =20 =20 =20 =20 =20 Justice

OPINION = DELIVERED: June=20 29, 2007