                                     NO. 12-10-00030-CV

                        IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

COTTON PATCH CAFÉ, INC.,                          §        APPEAL FROM THE 145TH
APPELLANT

V.                                                §        JUDICIAL DISTRICT COURT

MICROS SYSTEMS, INC.
AND SCOTT SHIPFERLING,
APPELLEES                                         §        NACOGDOCHES COUNTY, TEXAS

                                     MEMORANDUM OPINION
       Cotton Patch Café, Inc. appeals the trial court’s order dismissing its suit against Micros
Systems, Inc. and Scott Shipferling (collectively Appellees). In four issues, Cotton Patch argues
that the trial court erred in dismissing its suit. We affirm.


                                              BACKGROUND
       On May 31, 2001, Cotton Patch purchased a point-of-sale system from Micros Systems,
Inc. (MSI) to process credit card transactions for its Nacogdoches restaurant. Shipferling was
MSI’s sales representative for this transaction, which was memorialized by a written contract.
The contract stated, in pertinent part, as follows:


       This contract shall be governed by and construed according to the laws of the state of Maryland.
       The parties mutually consent to exclusive jurisdiction and venue in the state and federal courts
       sitting in the State of Maryland.


       Thereafter, Cotton Patch and MSI entered into eight other “sales contracts.” These
contracts concerned hardware, software, programming, and support services for the point-of-sale
system that was the subject of the first contract. These subsequent contracts contained the same


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language set forth above. However, these contracts further stated that the parties consented to
the exclusive jurisdiction and venue in the state and federal courts sitting in the State of
Maryland “for all matters arising under or relating to this sales contract, whether based on
contract, tort, or otherwise.”
       In 2004, Larry Marshall, president of Cotton Patch, became concerned about the security
of the point-of-sale system purchased from MSI. According to Marshall, he contacted MSI
about his concerns, but was told by a representative of MSI that there was nothing to worry
about. In 2006, the Cotton Patch point-of-sale system was compromised, customer credit card
numbers were stolen, and fraudulent charges were later made on certain Cotton Patch customers’
card accounts.
       On December 19, 2008, Cotton Patch filed suit in Nacogdoches County, Texas, against
MSI and Shipferling alleging that it suffered severe damage as a result of the lack of security in
its point-of-sale system. By its suit, Cotton Patch sought to recover for (1) violation of the Texas
Deceptive Trade Practices Act (DTPA), (2) negligence, (3) gross negligence, and (4) negligent
misrepresentation.
       Subsequently, MSI filed a motion to dismiss Cotton Patch’s suit based upon the forum
selection clauses of the parties’ several contracts.     Cotton Patch responded that MSI and
Shipferling committed torts against it and that its causes of action were unrelated to the contracts
that were the subject of MSI’s motion to dismiss. The trial court dismissed Cotton Patch’s suit
based upon the contracts’ forum selection clauses. This appeal followed.


                 MOTION TO DISMISS PURSUANT TO FORUM SELECTION CLAUSE
       In its first issue, Cotton Patch contends that the trial court abused its discretion in
granting Appellees’ motion to dismiss. In its second issue, Cotton Patch contends that its causes
of action against MSI were tortious in nature and were unrelated to the contracts between it and
MSI. We consider these two issues together.
       A motion to dismiss is the proper procedural mechanism for enforcing a forum selection
clause that a party to the agreement has violated in filing suit. Phoenix Network Techs. v. Neon
Sys., 177 S.W.3d 605, 610 (Tex. App.–Houston [1st Dist.] 2005, no pet.). The Texas Supreme
Court has held that a “forum [selection] clause should control absent a strong showing that it
should be set aside.” In re AIU Ins. Co., 148 S.W.3d 109, 112 (Tex. 2004) (orig. proceeding)

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(citing The Bremen v. Zapata Offshore Co., 407 U.S. 1, 92 S. Ct. 1907, 1913, 32 L. Ed. 2d 513
(1972)). A trial court abuses its discretion if it refuses to enforce the forum selection clause
unless the party opposing enforcement of the clause can show clearly 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. See In re Int’l Profit Assoc.,
Inc., 286 S.W.3d 921, 923 (Tex. 2009) (orig. proceeding). The burden of proof is heavy for the
party challenging enforcement. In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (orig.
proceeding).
        When a party seeks to enforce a forum selection clause, the trial court must first
determine whether the claims raised in the lawsuit fall within the scope of that clause. See In re
TCW Global Project Fund II, Ltd., 274 S.W.3d 166, 169 (Tex. App.–Houston [14th Dist.] 2008,
orig. proceeding [mand. denied]). If the claims fall within the scope of the forum selection
clause, the court then must decide whether the clause is enforceable. See id.
        A claim is brought in contract if liability arises from the contract. See In re Kaplan
Higher Educ. Corp., 235 S.W.3d 206, 209 (Tex. 2007) (orig. proceeding). A claim is brought in
tort if liability is derived from other general obligations imposed by law. Id. We are not to
follow slavish adherence to a contract/tort distinction; to hold to the contrary would allow a
litigant to avoid a forum selection clause with artful pleading. See In re Int’l Profit Assoc., 274
S.W.3d at 677 (citing Ginter ex rel. Bullard v. Belcher, Prendergast & LaPorte, 536 F.3d 439,
444 (5th Cir. 2008)). Rather, we must determine the issue after undertaking a common sense
examination of the substance of the claims made. See In re Int’l Profit Assoc., 274 S.W.3d at
677. Pleading alternative noncontractual theories of recovery will not alone avoid a forum
selection clause if those alternate claims arise out of the contractual relations and implicate the
contract’s terms. Christian Educ. v. Oracle Corp., 925 S.W.2d 66, 72 (Tex. App.–Dallas 1996,
no pet.).
        In the case at hand, Cotton Patch pleaded causes of action for violations of the DTPA,
negligence, gross negligence, and negligent misrepresentation. Each of these claims arises out of
the parties’ contractual relations regarding the point-of-sale system and necessarily implicates
the contract’s terms. Without the contractual relations, which had already been established
between Cotton Patch and MSI, the acts giving rise to the causes of action sounding in tort would

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not have occurred. Thus, based on our review of the record, we conclude that Cotton Patch’s
claims arise out of the parties’ contract rather than other general obligations imposed by law.
See In re Lisa Laser USA, Inc., 310 S.W.3d 880, 886 (Tex. 2010) (orig. proceeding).
       Cotton Patch also contends that Maryland would be inconvenient as a forum for trial.
The affidavits filed in support of its response to Appellees’ motion to dismiss state that “[a]ll
known witnesses in this case reside and/or took the actions for which they will testify in Texas
and it would be severely detrimental to the maintenance of Cotton Patch’s claims to have to
bring this case in Maryland, which has no relationship to the dispute.” But by entering into an
agreement that includes a forum selection clause, the parties effectively represent to each other
that the agreed forum is not so inconvenient that enforcing the clause will deprive either party of
its day in court, whether for cost or other reasons. In re Lyon Fin. Serv., Inc., 257 S.W.3d 228,
234 (Tex. 2008) (orig. proceeding). Absent proof of special and unusual circumstances, which,
based on our review of the record, were not demonstrated, trial in another state is not sufficiently
difficult and inconvenient to avoid enforcement of an otherwise valid forum selection clause.
See id. Because Cotton Patch has failed to meet its heavy burden to show Maryland would be a
seriously inconvenient forum for trial, we hold that the trial court did not abuse its discretion in
granting Appellees’ motion to dismiss.
       Cotton Patch’s first and second issues are overruled.


                           STATUTORY PROVISIONS ON FORUM SELECTION
       In its third issue, Cotton Patch contends that the forum selection clauses in its contracts
with MSI were voidable according to Chapter 273 of the Texas Business and Commerce Code.
Chapter 273 requires forum selection clauses in certain types of agreements to be set forth
conspicuously. See TEX. BUS. & COM. CODE ANN. § 273.002 (Vernon 2009). Section 273.001,
which sets forth what types of contracts are subject to this requirement, states, in pertinent part,
as follows:


       This chapter applies to a contract only if:

        (1) the contract is for the sale, lease, exchange, or other disposition for value of goods for the
       price, rental, or other consideration of $50,000 or less;

        (2) any element of the contract’s execution occurred in this state;



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         (3) a party to the contract is:

           (A) an individual resident of this state; or

            (B) an association or corporation that is created under the laws of this state or has its principal
        place of business in this state; and

         (4) Section 1.301 does not apply to the contract.


TEX. BUS. & COM. CODE ANN. § 273.001 (Vernon 2009).
        MSI responds that Section 273.001(a)(4) specifically excepts a contract under Section
1.301(a) of the Texas Business and Commerce Code. Section 1.301(a) states as follows:

                  Except as provided hereafter in this section, when a transaction bears a reasonable
        relation to this state and also to another state or nation[,] the parties may agree that the law either
        of this state or of such other state or nation shall govern their rights and duties. Failing such
        agreement this title applies to transactions bearing an appropriate relation to this state.

TEX. BUS. & COM. CODE ANN. § 1.301(a) (Vernon 2009). We must, therefore, determine which
of these two provisions of the Texas Business and Commerce Code control the forum selection
clauses in the case at hand.
        The fundamental rule governing the construction of a statute is to ascertain the intent of
the legislature in enacting the statute. Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 561 (Tex.
App.–Tyler 2007, pet. denied). We must construe statutes as written and, if possible, ascertain
legislative intent from the statute’s language.                Id. at 562.       When a statute is clear and
unambiguous, courts need not resort to rules of construction or extrinsic aids to construe it, but
should give the statute its common meaning. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d
503, 505 (Tex. 1997). We construe the statute’s words according to their plain and common
meaning. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008).
        A trial court’s determination of choice of law is a question of law and is reviewed de
novo.    Cudd Pressure Control v. Sonat Exploration, 202 S.W.3d 901, 904 (Tex. App.–
Texarkana 2006), aff’d, 271 S.W.3d 228 (Tex. 2008). The underlying principle is to protect the
parties’ expectations. Id. at 904. In that regard, the courts have repeatedly recognized that the
contracting parties frequently express their choice of law for the construction and interpretation
of their agreement. Id. The Texas Supreme Court has stated that judicial respect for the
contracting parties’ choice of law advances the policy of protecting the parties’ expectations. Id.



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       The parties’ contractual choice of law will be given effect if the contract bears a
reasonable relationship to the chosen state and no countervailing public policy of the forum
demands otherwise. Sava Gumarska Kemijska Indus. D.T. v. Advanced Polymer Sci., Inc., 128
S.W.3d 304, 314 (Tex. App.–Dallas 2004, no pet.). The state in which a company has its
principal place of business has a reasonable relationship to the parties and the transaction. My
Café CCC, Ltd. v. Lunchstop, Inc., 107 S.W.3d 860, 865 (Tex. App.–Dallas 2003, no pet.).
       Section 273.001 specifically states that it does not apply to the contract if Section 1.301
applies. Pursuant to Section 1.301, the policy of the state of Texas is to allow parties to contract
for the choice of law they want to govern a contract insomuch as the transaction bears a
reasonable relation to the chosen state. See TEX. BUS. & COM. CODE ANN. § 1.301(a). Here,
MSI is a Maryland corporation. Moreover, in each of the nine contracts at issue, the parties
agreed that the law of Maryland would govern any disputes between them and that the courts in
Maryland would be the forum for any litigation. We conclude that the parties’ transaction bears
a reasonable relation to the state of Maryland. Accordingly, we hold that the choice of law and
forum selection designated in the contracts between Cotton Patch and MSI should be upheld
pursuant to Section 1.301(a) of the Texas Business and Commerce Code. Cotton Patch’s third
issue is overruled.


                         AFFIDAVIT SUPPORTING MOTION TO DISMISS
       In its fourth issue, Cotton Patch contends that the trial court erred by considering the
affidavit of Ryan Ritter, the general manager of MSI’s Dallas district office, in support of MSI’s
motion to dismiss. Specifically, Cotton Patch contends that Ritter’s affidavit was conclusory
and, therefore, was not evidence the trial court could consider in determining MSI’s motion to
dismiss.
       Affidavits are to be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated therein. See Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538, 542 (Tex. App.–
Houston [14th Dist.] 2007, pet. denied).        Affidavits must set forth the facts and show
affirmatively how the affiant obtained personal knowledge of these facts. First Nat’l Bank in
Munday v. Lubbock Feeders, 183 S.W.3d 875, 871 (Tex. App.–Eastland 2006, pet. denied). A
person’s position or job responsibilities can qualify him to have personal knowledge of facts and

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establish how he learned of the facts. See Southtex 66 Pipeline Co., 238 S.W.3d at 543. A
conclusory statement is one that does not provide the underlying facts to support the conclusion.
Perrigon Gen. Contractors v. Larco Constr., 227 S.W.3d 876, 883 (Tex. App.–Dallas 2007, no
pet.). An affidavit containing conclusory and subjective determinations of fact may support a
motion to dismiss if the remaining statements contain sufficient factual information to sustain the
movant’s burden of proof. See First Nat’l Bank in Munday, 183 S.W.3d at 881.
         In the instant case, our review of Ritter’s affidavit indicates that it was based upon
personal knowledge Ritter obtained from interviewing Scott Shipferling and other MSI
employees who had dealt with the Cotton Patch location in question as well as from his review
of MSI’s files and records. MSI’s motion to dismiss was based on its contention that the parties
had contractually agreed that Maryland law would control any disputes between them and that
Maryland courts would serve as the forum for determining the outcome of any of these legal
disputes. At a minimum, MSI’s motion to dismiss was properly supported by valid copies of the
nine contracts containing these choice of law and forum selection clauses. Ritter, as general
manager of MSI’s Dallas district office, was qualified to introduce these contracts into evidence,
which he did through his affidavit. Thus, we conclude that the trial court properly considered
Ritter’s affidavit, through which these nine contracts were introduced, in ruling on MSI’s motion
to dismiss. Cotton Patch’s fourth issue is overruled.


                                                    DISPOSITION
         Having overruled Cotton Patch’s first, second, third, and fourth issues, we affirm the trial
court’s judgment.
                                                                  JAMES T. WORTHEN
                                                                     Chief Justice


Opinion delivered March 2, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



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