                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-13-00226-CV
                              _________________


  IN RE GUARDIAN ANGEL SERVICE DOGS, INC., NOW KNOWN AS
         SERVICE DOGS BY WARREN RETRIEVERS, INC.

________________________________________________________________________

                               Original Proceeding
________________________________________________________________________

                          MEMORANDUM OPINION

       Guardian Angel Service Dogs, Inc., now known as Service Dogs by Warren

Retrievers, Inc., (“Service Dogs”) filed a petition for writ of mandamus to compel

the trial court to enforce a contractual forum selection clause. We stayed further

proceedings in the trial court and requested a response from the real parties in

interest, Ryan McLeod and Tara McLeod. Upon consideration of the petition and

response, we conditionally grant relief.

      The local community raised funds to obtain a medical alert service dog for

the McLeods’ son. On June 5, 2012, referring to a letter dated December 15, 2011,


                                           1
Service Dogs demanded what Service Dogs stated were charitable funds received

on behalf of Service Dogs. The McLeods filed a petition for a declaratory

judgment that they are not required to pay Service Dogs “over and above the

$20,000 that has already been paid for the dog” pursuant to a “Puppy Purchase and

Training Agreement” executed on May 18, 2012. Service Dogs moved to dismiss

the case because the contract contains a forum-selection clause naming Virginia as

“the appropriate venue for any action arising out of this Agreement.” The contract

also contains a merger clause that disavows any other obligations between the

parties. The trial court denied Service Dogs’ motion to dismiss. The trial court

found the dispute concerned Service Dogs’ demand for fundraising proceeds

acquired by the McLeods before May 18, 2012, and did not arise out of the

contract.

       “[M]andamus relief is available to enforce an unambiguous forum-

selection clause in a contract.” In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883

(Tex. 2010) (orig. proceeding). “[D]etermining whether a contract or some other

general legal obligation establishes the duty at issue and dictates whether the

claims are such as to be covered by the contractual forum-selection clause should

be according to a common-sense examination of the substance of the claims




                                        2
made.” In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 677 (Tex. 2009) (orig.

proceeding).

      The forum selection clause in the Puppy Purchase and Training Agreement

applies, by the terms of the contract, to “any action arising out of this Agreement.”

The trial court found that the McLeods are not seeking to enforce a right provided

in the Agreement, but their pleadings ask for “[a] declaration that the Plaintiffs are

not required to pay over and above the $20,000 that has already been paid for the

dog” and “[a] declaration that the Defendant is not entitled to anything in addition

from Plaintiffs, specifically any money remaining in the medical account that has

been set up for [the McLeods’ son].” Assuming without deciding that the second

requested declaration concerns a dispute over ownership of funds in an account

unrelated to the contract, and that the parties’ rights and obligations concerning

those funds arise out of federal tax law independent of the contract, the first

requested declaration unambiguously calls for a determination of a question of

construction of the Puppy Purchase and Training Agreement.

      The McLeods are asserting that their only obligation to Service Dogs was to

pay the $20,000 purchase price for the dog. Their claims cannot be maintained

without reference to the agreement that provides the sole contractual relationship

between the parties. In its mandamus petition, Service Dogs states, “The parties’

                                          3
entire relationship with each other arises solely form their contractual dealings,

which included fundraising.” Thus, Service Dogs concedes that any claim it might

have to the disputed funds arises solely from the Puppy Purchase and Training

Agreement. Because the McLeods’ obligations and Service Dogs’ claims may only

be understood by reference to the Puppy Purchase and Training Agreement, the

dispute is within the scope of that contract’s forum-selection clause. See Lisa

Laser, 310 S.W.3d at 885.

        The trial court held the forum-selection clause did not apply to the

declaratory judgment action; consequently, the trial court did not reach the

McLeods’ grounds for not enforcing the forum-selection clause. See generally In

re ADM Investor Servs., Inc., 304 S.W.3d 371, 375 (Tex. 2010) (orig. proceeding)

(“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.”). Because the order subject to mandamus review

is not based on the McLeods’ alternative arguments, we express no opinion on

them.

                                         4
      The dispute falls within the scope of the forum-selection clause of the

parties’ contract. The trial court abused its discretion when it denied Service Dogs’

motion to dismiss on that ground. We are confident that the trial court will vacate

its order of January 16, 2013, and will re-consider the motion to dismiss and the

response. The writ of mandamus will issue only if the trial court fails to act in

accordance with this opinion within a reasonable time.

      PETITION CONDITIONALLY GRANTED.



                                                          PER CURIAM


Submitted on June 3, 2013
Opinion Delivered June 27, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.




                                         5
