Drug Test USA, Quick Results, L.L.C. v. Buyers Shopping Network, Inc. ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00130-CV

Drug Test USA, Quick Results, L.L.C.,

                                                                      Appellant

 v.

Buyers Shopping Network, Inc.,

                                                                      Appellee

From the County Court at Law No 1

Jefferson County, Texas

Trial Court # 95619

DISSENTING Opinion

          I fail to see why we should undermine the legislature and the agreement of the parties.  We only interpret a statute when it is ambiguous.  Section 35.53(a)(3) expressly and unequivocally states that section 35.53 does not apply to a contract if former section 1.105 of the Code applies.  Tex. Bus. & Com. Code Ann. § 35.53(a)(3) (Vernon 2002).

          There is no dispute that this agreement meets the requirements to make former section 1.105 applicable.  See Tex. Bus. & Com. Code Ann. § 1.301 (Vernon Supp. 2004-2005).  Drug Test simply wants us to construe that it does not apply. 

          The purpose of the statutes and their interaction seems very practical to me.  A forum-selection clause dispels any confusion about where suits arising from the contract must be brought and defended, which spares litigants the time and expense of pretrial motions to determine the correct forum and conserves judicial resources.  In re AIU Ins. Co., 2004 Tex. LEXIS 783, *10, 47 Tex. Sup. J. 1093 (Tex. Sept. 3, 2004).  If both states have a reasonable relationship to the transaction, the parties can agree to resolve their disputes under the contract in either forum, and that part of the agreement need not draw any particular attention to itself by type style or size of print.  Tex. Bus. & Com. Code Ann. § 1.301 (Vernon Supp. 2004-2005).

          But if the parties to an agreement want the law of some other state to apply to the transaction, the law of a state that does not otherwise bear a reasonable relationship to the transaction, then that provision must be conspicuously set out in the agreement.  Tex. Bus. & Com. Code Ann. § 35.53(b) (Vernon 2002).  This makes a lot of sense to me.  Only when the parties are choosing the law of a state unrelated to the transaction, an agreement the parties can make, must that provision by its type style or size of print, draw attention to itself.

          These parties agreed that the law of a state that was reasonably related to their transaction applied.  Because former section 1.105 of the Code applies to this contract, section 35.53 does not.  I do not know how the legislature could have made it any clearer.  I would affirm the trial court’s decision.  Because the Court does not, I respectfully dissent.

                                                                                    TOM GRAY

                                                                                    Chief Justice

Dissenting opinion delivered and filed December 8, 2004

ld him that he would be arrested if he did not confess.  The detective denied that he told Appellant that.  The detective further testified that he told Appellant that if Appellant gave false answers during a polygraph examination, the detective would present Appellant’s case to the district attorney’s office; and that after the polygraph examination showed that Appellant was deceitful, the detective asked whether Appellant wanted to give a written statement, but told Appellant that he was free to go whether or not he gave a statement.  On the basis of this evidence, the trial court did not err in finding by the preponderance of the evidence that Appellant’s statement was voluntary.

      Accordingly, Appellant’s first issue is overruled.

2.    In Appellant’s second issue, he contends that the trial court erred in sustaining the State’s objection to evidence of letters that he argues were written by one of his victims.  We will overrule Appellant’s second issue.

      One of Appellant’s victims testified that Appellant’s abuse of her made her feel “the feeling of being like your innocence is just taken right away from you.”  Outside the presence of the jury, Appellant offered the purported letters that he argues “described and discussed sexual topics” to show that the victim was not innocent.  The State objected on the grounds that the purported letters were not relevant in time and that their probative value was substantially outweighed by the danger of unfair prejudice.  See Tex. R. Evid. 401, 403.  The trial court sustained the objections.

      The trial court’s ruling on the admission or exclusion of evidence is reviewed for the abuse of discretion.  Rayford, 125 S.W.3d at 529.

      Appellant does not address the State’s independent Rule 403 objection, and we may overrule his issue for that reason alone. The purported letters, moreover, are dated after the time of Appellant’s abuse of the victim.  Thus, the trial court did not abuse its discretion in holding that the evidence was not relevant in time.  Accordingly, Appellant’s second issue is overruled.

      Having overruled both of Appellant’s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed July 14, 2004

Do not publish

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