SuperMedia, L.L.C. v. Law Offices of Asheron, Klein & Darbinian, and Anne Darbinian, and Neville Ashero, individually
AFFIRM; Opinion Filed February 14, 2012.
Court of Appeals
Fifth District of Texas at Dallas
SUPERMEDIA LLC, Appellant
LAW OFFICES OF ASHERSON, KLEIN & DARBINIAN,
ANNA DARBINIAN, AND NEVILLE ASHERSON, Appellees
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-09-17306-F
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.
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
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. See Footnote 1 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.
Standard of Review and Applicable Law
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.
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. See Footnote 2 Accordingly, we conclude that the trial
court did not err by granting appellees' special appearance.
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'
The December 2006 Terms and Conditions contained the following
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.
Appellees disputed whether this provision is a forum selection clause.
Based on our resolution of this appeal, however, we do not need to reach
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. . . .