Opinion
No. 05-10-01385-CV
02-14-2012
SUPERMEDIA LLC, Appellant v. LAW OFFICES OF ASHERSON, KLEIN & DARBINIAN, ANNA DARBINIAN, AND NEVILLE ASHERSON, Appellees
AFFIRM; Opinion Filed February 14, 2012.
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-09-17306-F
MEMORANDUM OPINION
Before Justices Morris, Francis, and Lang-Miers
Opinion By Justice Lang-Miers
Appellant SuperMedia LLC challenges the trial court's order granting the special appearance of appellees the Law Offices of Asherson, Klein & Darbinian, Anna Darbinian, and Neville Asherson. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. For the following reasons, we affirm the trial court's order. Background
SuperMedia LLC is a Delaware company with its principal place of business in Texas. The Law Offices of Asherson, Klein & Darbinian is a California general partnership, and Darbinian and Asherson are its managing partners. Darbinian, Asherson, and SuperMedia (or its predecessors Verizon and Idearc) entered into seventeen agreements between October 2006 and December 2008 for directory advertising in California. In connection with those agreements, Darbinian and Asherson signed sixteen documents entitled "Application for Directory Advertising" and one document entitled "Advertising Agreement" (collectively, Application(s)). Each Application involved a different directory publication date. The first sixteen Applications incorporated a separate document entitled "Application for Directory Advertising Terms and Conditions" and stated that the terms and conditions were attached to the Application and also available on the company's website. The last Application stated that it included "any additional terms and conditions that we publish on the websites . . . or that are included in any pre-printed addenda we provide." But instead of the terms and conditions being in a separate document as with the other sixteen Applications, the terms and conditions were printed in the Application itself.
SuperMedia sued appellees in Dallas County alleging that appellees failed to pay SuperMedia as promised and owed over $173,000 under all their advertising agreements. In its petition, SuperMedia alleged that jurisdiction was proper in Dallas County because the terms and conditions contained a forum selection clause designating Dallas County as a proper venue for lawsuits arising under the contracts. SuperMedia attached a copy of each of the Applications to its petition, but it attached only one copy of the Terms and Conditions, a copy dated December 2006, containing what it contended was a forum selection clause. Appellees filed a joint special appearance arguing that the trial court did not have jurisdiction. They disputed the existence of a forum selection clause and argued that they had no contacts that made them amenable to suit in Texas. See Falk & Fish, L.L.P. v. Pinkston's Lawnmower & Eqpt., Inc., 317 S.W.3d 523, 526 (Tex. App.-Dallas 2010, no pet.). The trial court granted the special appearance. SuperMedia appeals the trial court's ruling.
The December 2006 Terms and Conditions contained the following provision:
SECTION 19. GOVERNING LAW. Advertiser and Publisher agree that this Application and all disputes relating to this Application will be governed by and interpreted according to the State of Texas as applied to agreements entered into and to be performed entirely within Texas between residents. Venue as to any action or proceeding initiated by either party will be proper in Dallas County, Texas.
Standard of Review and Applicable Law
Special Appearance
The plaintiff bears the initial burden of pleading facts sufficient to bring the defendant within the reach of the Texas long-arm statute. Alliance Royalties, LLC v. Boothe, 329 S.W.3d 117, 120 (Tex. App.-Dallas 2010, no pet.). The burden then shifts to the defendant to negate all bases for personal jurisdiction asserted by the plaintiff. Id. If the defendant does so, the burden shifts back to the plaintiff to show the court has personal jurisdiction over the defendant as a matter of law. Id.
When a party challenges a trial court's ruling on a special appearance, and the court did not make findings of fact and conclusions of law, we infer all facts necessary to support the judgment if they are supported by the evidence. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794-95 (Tex. 2002).
Forum Selection Clause
Forum selection clauses are enforceable in Texas if the parties have contractually consented to submit to the exclusive jurisdiction of Texas. See My Café-CCC, Ltd. v. Lunchstop, Inc., 107 S.W.3d 860, 864 (Tex. App.-Dallas 2003, no pet.); In re Cornerstone Healthcare Holding Group, Inc., 348 S.W.3d 538, 540 (Tex. App.-Dallas 2011, orig. proceeding); Falk, 317 S.W.3d at 526. We review a trial court's ruling concerning the validity and enforceability of a forum selection clause for an abuse of discretion. See Cornerstone, 348 S.W.3d at 540; Falk, 317 S.W.3d at 526. A trial court does not abuse its discretion if it bases its decision on conflicting evidence. My Café, 107 S.W.3d at 864.
Discussion
In issues one and two, SuperMedia argues that the trial court abused its discretion by not enforcing the forum selection clause. Appellees respond that SuperMedia did not prove appellees contractually consented to jurisdiction in Texas. We agree with appellees.
At the hearing on the special appearance, the parties disputed whether the December 2006 Terms and Conditions applied to all of the Applications. SuperMedia attempted to prove they did by presenting testimony from its corporate representative, Vanessa Andros. Andros testified generally that the December 2006 Terms and Conditions applied to all the advertising agreements with appellees. She testified specifically that those terms and conditions applied to the Applications dated March 20, 2007, May 15, 2007, September 13, 2007, December 4, 2007, and February 4, 2008. She also testified, however, that over the years SuperMedia changed the terms and conditions that applied to these Applications. Andros testified that the company did some "minor tweaking" of the terms and conditions throughout the years and made a dramatic change in December 2008. She said up until December 2008, "things were not changing that much" during the "minor tweaking." Andros testified that it was company policy that a sales representative would give an advertiser a copy of the terms and conditions that applied at the time an application was signed. She conceded, however, that she did not have personal knowledge about what specific terms and conditions appellees received when they signed each of the Applications.
Based on this evidence, appellees argued below that SuperMedia did not sustain its burden to show that the Applications contained forum selection clauses designating Dallas County as a proper forum for this lawsuit. Appellees argued that SuperMedia did not present any evidence about what specific terms and conditions appellees received when they signed sixteen of the Applications, and the last Application did not contain any language designating Dallas County as a proper forum. The record supports appellees' argument, and that is one ground upon which the trial court could have based its decision to grant the special appearance. Accordingly, we conclude that the trial court did not err by granting appellees' special appearance.
The trial court expressed concern that SuperMedia had not carried its initial burden to show that each of the Applications contained a forum selection clause and remarked: [Y]ou have got to prove that your contract had this forum selection clause. . . . I think the proof is absent because - on [contracts] A-1 through 16, it refers to an addendum that was - that was attached, and it's not attached. . . . [S]o we don't know exactly what was attached. Now, I know you can testify to what the process was and what the policies was [sic]. I don't think that's -- that's enough because you have to prove because we know that y'all changed it. . . .
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We resolve appellant's first and second issues against it. We do not need to reach issue three, which addresses the doctrine of forum non conveniens. We affirm the trial court's order granting appellees' special appearance.
ELIZABETH LANG-MIERS
JUSTICE
101385F.P05
Appellees disputed whether this provision is a forum selection clause. Based on our resolution of this appeal, however, we do not need to reach that issue.