FLARB, LLC v. Nickels and Dimes Incorporated ( 2024 )

REVERSE AND RENDER; Opinion Filed July 1, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00121-CV
FLARB, LLC, Appellant
V.
NICKELS AND DIMES INCORPORATED, Appellee
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-03367-2023
MEMORANDUM OPINION
Before Justices Molberg, Nowell, and Kennedy
Opinion by Justice Kennedy
In this accelerated appeal, FLARB, LLC appeals from the trial court’s
interlocutory order denying its special appearance. In its first issue, appellant argues
the trial court’s denial was error because the only bases for jurisdiction were the
choice-of-venue and jurisdiction provisions in a settlement agreement not actually
entered into by either party due to failure of a required condition precedent to
contract formation. In its second issue, appellant urges the trial court erred by failing
to admit evidence probative of the fact that neither party actually entered into the
agreement. We reverse the trial court’s order denying appellant’s special appearance
and render judgment dismissing all claims against appellant for lack of personal
jurisdiction. Because all dispositive issues are settled in law, we issue this
memorandum opinion. See TEX. R. APP. P. 47.2(a), 47.4.
BACKGROUND
Appellant is a limited liability company incorporated in California with a
principal place of business located in California. On July 20, 2018, appellant filed
a trademark application with the United States Patent and Trademark Office for the
word mark “DEMON’S TILT” for use in computer game software. Soon thereafter,
appellant announced it was publishing and co-developing a game called DEMON’S
TILT, a pinball-style computer game.
On July 22, 2021, appellee, a Texas corporation with its principal business
office located in Texas, sent appellant a demand letter alleging unauthorized use of
appellee’s trademark, TILT. Appellee represented that its TILT trademark is
registered in connection with providing amusement arcade game facility
entertainment services and that there could be a likelihood of confusion between
TILT and DEMON’S TILT. Appellant responded, denying any likelihood of
confusion. On October 5, 2021, appellee commenced proceedings to cancel
appellant’s federal trademark registration for DEMON’S TILT.
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In December 2022, the parties began settlement negotiations to resolve the
trademark dispute. Those negotiations continued through 2023, with several email
communications and multiple drafts exchanged throughout the process:1
 On February 24, appellant’s counsel emailed proposed terms for a
settlement agreement: “(1) [appellant] pays [appellee] $15,000; (2)
[appellant] agrees not to use any mark containing the “TILT” term for
a retail/brick and mortar entertainment venue; and [t]he parties agree to
standard co-existence terms — cooperate in the case of actual
confusion, etc.”
 On February 27, appellee’s counsel emailed that appellee “accepts
those material terms,” suggested suspending the cancellation
proceeding “for 30 days to finalize a settlement agreement, and
proposed he circulate the first draft.”
 On March 3, appellant’s counsel emailed that his client had reviewed
and made some modifications and requested appellee’s counsel “review
and confirm your approval.”
 On March 6, appellee’s counsel emailed a response to “accept [the
changes] and send me a signed copy of the Agreement for my client to
countersign.”
 On March 13 and 20, appellee’s counsel emailed appellant’s counsel
asking, “When can I expect the signed agreement from you?”
 Later on March 20, appellant’s counsel emailed, stating that attached
was a signed agreement with “some small changes,” including
changing the governing law and jurisdiction to the state of California,
instead of Texas.
 That same day, appellee’s counsel responded, “On March 6th, we
accepted your client’s counteroffer,” “[a]s of that date, we had an
agreement,” and that appellee rejected appellant’s proposed change to
the governing law and jurisdiction provision.
1
Copies of these email communications were attached as exhibits to appellee’s petition.
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On June 28, 2023, appellee filed the underlying breach-of-contract suit against
appellant, alleging the parties had reached a settlement agreement on March 6, 2023
(March 6 Agreement), that appellant had refused to perform its obligations under the
March 6 Agreement, and that appellant had repudiated the March 6 Agreement by
submitting to appellee a new proposed agreement with terms differing from the
March 6 Agreement. In its petition, appellee alleged, “This Court has personal
jurisdiction over Defendant because, as more specifically alleged below, the Parties
entered into an agreement and in Paragraph 9(b) the Parties consented to personal
jurisdiction in the state of Texas to resolve any and all disputes arising out of their
agreement.”
On November 11, 2023, appellant filed its special appearance and answer
subject thereto. In that special appearance, appellant asserted the parties “never fully
executed a settlement where all terms were agreed by both sides.” Additionally,
appellant denied being a Texas resident, having minimum contacts with Texas, or
consenting to Texas jurisdiction and urged that appellee failed to plead appellant
committed an act in Texas or that appellant’s acts outside Texas had reasonably
foreseeable consequences in Texas. Appellant also argued exercise of jurisdiction
over it would offend the traditional notions of fair play and substantial justice.
Attached as support to the special appearance were the affidavits of appellant’s chief
executive officer Ralph Barbagallo and its counsel Anton N. Handal. According to
Barbagallo, negotiations continued after the March 20 email exchange, including
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additional drafts exchanged and rejected, but appellant did not agree to or sign any
proposed agreement in which it consented to jurisdiction in Texas. Handal’s
affidavit included similar statements that negotiation discussions continued after
March 20 and that the parties continued to exchange drafts, but that appellant never
agreed to or signed any agreement to consent to jurisdiction in Texas.
Appellee responded to appellant’s special appearance with a declaration from
its counsel Bradley J. Walz and several evidentiary exhibits attached thereto,
including emails between himself and Handal. According to Walz, on March 27, he
had a phone conference with Handal, during which he asserted the parties had a
contract, but that appellee would discuss amending the Agreement. Appellant filed
a reply. On January 18, 2024, the trial court conducted a non-evidentiary hearing on
the special appearance motion, and on February 12, the trial judge signed an order
overruling appellant’s special appearance. This appeal followed.
DISCUSSION
In its first issue, appellant argues the trial court’s ruling denying its special
appearance was error because the only bases for jurisdiction were the choice-of-
venue and consent-to-jurisdiction provisions in a settlement agreement not actually
entered into by either party due to failure of a required condition precedent to
contract formation.
A court may assert personal jurisdiction over a nonresident defendant only if
the Texas long-arm statute and due process requirements of the Fourteenth
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Amendment to the United States Constitution are satisfied. Boyer v. Mode Transp.,
LLC, No. 05-23-00008-CV, 2023 WL 6457442, at *2 (Tex. App.—Dallas Oct. 4,
2023, no pet.) (mem. op.) (citing U.S. CONST. amend. XIV, § 1; TEX. CIV. PRAC. &
REM. CODE § 17.042 (Texas long-arm statute); LG Chem Am., Inc. v. Morgan, 670
S.W.3d 341, 346 (Tex. 2023)). The Texas long-arm statute allows Texas courts to
exercise personal jurisdiction over a nonresident defendant who is doing “business
in this state” and “commits a tort in whole or in part in this state.” CIV. PRAC. &
REM. § 17.042(2). Due process is satisfied when the nonresident defendant has
established minimum contacts with the forum state and the exercise of jurisdiction
over the nonresident defendant comports with traditional notions of fair play and
substantial justice. See Boyer, 2023 WL 6457442, at *2 (citing Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316–17 (1945); LG Chem Am., Inc., 670 S.W.3d at 346).
In a challenge to personal jurisdiction, the plaintiff and the defendant bear
shifting burdens of proof. Old Republic Nat’l Title Ins. Co. v. Bell, 549 S.W.3d 550,
558 (Tex. 2018) (citing Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658
(Tex. 2010)). The plaintiff bears the initial burden to plead sufficient allegations to
bring the nonresident defendant within the reach of Texas’s long-arm statute. Id.(citing Kelly, 301 S.W.3d at 658). Once it has done so, the burden shifts to the
defendant to negate all bases of personal jurisdiction alleged by the plaintiff. Id.
(citing Kelly, 301 S.W.3d at 658).
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Objections to personal jurisdiction may be waived, so a litigant may consent
to the personal jurisdiction of a court through a variety of legal arrangements. In re
Fisher, 433 S.W.3d 523, 532 (Tex. 2014) (orig. proceeding) (citing Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 472 n. 14 (1985)). A contractual “consent-to-
jurisdiction clause” subjects a party to personal jurisdiction, making an analysis of
that party’s contacts with the forum for personal jurisdiction purposes unnecessary.
See id. (citing RSR Corp. v. Siegmund, 309 S.W.3d 686, 704 (Tex. App.—Dallas
2010, no pet.) (concluding a contract provision that claims “may be heard” in Dallas
courts was a “consent-to-jurisdiction” clause and trial court erred by granting
defendant’s special appearance)) (other citations omitted)).
Whether a trial court has personal jurisdiction over a nonresident defendant is
a question of law that we review de novo. Old Republic Nat’l Title Ins. Co. v. Bell,
549 S.W.3d 550, 558 (Tex. 2018) (citing Moncrief Oil Int’l Inc. v. OAO Gazprom,
414 S.W.3d 142, 150 (Tex. 2013)). When we review a trial court’s order denying a
special appearance, we review the court’s factual findings for legal and factual
sufficiency and its legal conclusions de novo. CNOOC Se. Asia Ltd. v. Paladin Res.
(SUNDA) Ltd., 222 S.W.3d 889, 894 (Tex. App.—Dallas 2007, pet. denied) (citing
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793–94 (Tex. 2002); A
& J Printing, Inc. v. DSP Enters., L.L.C., 153 S.W.3d 676, 680 (Tex. App.—Dallas
2004, no pet.)). When a trial court does not issue findings of fact and conclusions
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of law, we must imply all findings of fact necessary to support the judgment if they
are supported by the evidence. Id. (citing BMC Software, 83 S.W.3d at 795).
Here, the trial court did not issue findings of fact and conclusions of law.
Consequently, by denying the special appearance, the court impliedly found that the
forum-selection clause in the March 6 Agreement was valid and enforceable. We
review the validity and enforceability of a forum-selection clause under an abuse of
discretion standard. CNOOC Se. Asia Ltd., 222 S.W.3d at 894 (citing My Cafe–
CCC, Ltd. v. Lunchstop, Inc., 107 S.W.3d 860, 864 (Tex. App.—Dallas 2003, no
pet.); Phoenix Network Techs. v. Neon Sys., 177 S.W.3d 605, 610 (Tex. App.—
Houston [1st Dist.] 2005, no pet.)).
Appellant contends the forum-selection clause was not enforceable for two
reasons: (1) language in the March 6 Agreement and correspondence between the
parties’ counsel showed the parties’ intent to be bound only upon signing and
appellant never signed, and (2) the March 6 Agreement includes a consideration
provision that required appellant to deposit $15,000 and that because appellant did
not do so, the contract’s formation was prevented.
“Texas law recognizes that a contract need not be signed to be ‘executed’
unless the parties explicitly require signatures as a condition of mutual assent.”
Phillips v. Carlton Energy Grp., LLC, 475 S.W.3d 265, 277 (Tex. 2015) (citations
omitted). Where parties to a written contract intend that it shall not be binding until
it is signed by the parties, the signatures of both parties are required to give effect to
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the contract. See New York Party Shuttle, LLC v. Bilello, 414 S.W.3d 206, 214 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied) (citing Simmons & Simmons Constr.
Co. v. Rea, 286 S.W.2d 415, 418–19 (1955); Birchminster Res. v. Corpus Christi
Mgmt. Co., 517 S.W.2d 608, 611 (Tex. App.—Corpus Christi 1974, writ dism’d)).
Therefore, “the question of whether a written contract must be signed to be binding
is a question of the parties’ intent.” Id. (quoting In re Bunzl USA, Inc., 155 S.W.3d
202, 209 (Tex. App.—El Paso 2004, no pet.).2
Courts have reviewed evidence from the written instrument purporting to be
a contract as well as the parties’ communication and conduct to determine the
parties’ intent. For example, the Texas Supreme Court concluded the following
evidence supports that the parties intended for the written contract to be signed in
order to be binding: the written instrument provided places for the signatures of both
parties, required the signatures of both parties in connection with the furnishing of a
performance bond, and was delivered with specific instructions to sign it. See
Simmons, 286 S.W.2d at 418–19. Likewise, the Houston Court of Appeals
2
Additionally, the Texas statute of frauds requires certain promises or agreements to be in writing and
“signed by the person to be charged with the promise or agreement or by someone lawfully authorized to
sign for him.” See TEX. BUS. & COM. CODE § 26.01(a). Appellant urges the March 6 Agreement falls
within the statute of frauds because the terms were “not to be performed within one year from the date of
making the agreement. See id. § 26.01(b)(6). Appellee responds that the statute of frauds is an affirmative
defense appellant has waived by failing to plead or otherwise raise in the trial court proceedings. However,
Rule 120a provides that a challenge to personal jurisdiction “shall be heard and determined before . . . any
other plea or pleading may be heard” and that “[n]o determination of any issue of fact in connection with
the objection to jurisdiction is a determination of the merits of the case or any aspect thereof.” TEX. R. CIV.
P. 120a(2). Because we conclude infra that the parties intended for the March 6 Agreement to be signed
by the parties to be enforceable, we need not decide whether appellant waived any argument regarding
applicability of the statute of frauds to the March 6 Agreement. See TEX. R. APP. P. 47.1, 47.4.
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considered language in the settlement agreement that it could not be “modified or
amended except by an instrument in writing signed by all of the Parties hereto” to
demonstrate that both parties intended signatures to be a condition precedent to a
valid, new agreement and thus the evidence was legally sufficient to support the trial
court’s finding that signatures were required before a new agreement was formed
and appellant failed to conclusively establish its affirmative defense of novation.
Bilello, 414 S.W.3d at 214; see also In re Bunzl USA, Inc., 155 S.W.3d at 210(holding provision requiring modification or amendment of agreement to be in
writing and signed by the parties as well as the signature block was evidence the
parties did not intend to be bound until both parties signed the agreement).
As evidence the March 6 Agreement required signatures as a condition of
mutual assent, appellant points to the following:
 The Authority to Execute Agreement provision: “By signing below,
each Party warrants and represents that the person signing this
Agreement on its behalf has authority to bind that Party and that the
Party’s execution of this Agreement is not in violation of any By-law,
Covenant and/or other restrictions placed upon them by their respective
entities”;
 The Entire Agreement provision, which states in part that “no
modification of this Agreement shall be binding unless in writing and
signed by each of the Parties”; and
 The signature blocks for each party at the end of the March 6
Agreement.
Appellant also relies on a March 2 email from appellee’s attorney in which Walz
instructs Handal to “have your client sign and return an executed copy of the
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agreement to me,” which was attached as an exhibit to the special appearance.
Appellant additionally cites emails dated March 6, 13, and 20, in which Waltz directs
Handal on March 6 to “send me a signed copy of the Agreement for my client to
countersign” and on March 13 and 20 asks, “When can I expect the signed agreement
from you?” These three emails were attached to appellee’s petition as well as to
appellee’s response to the special appearance.3
We conclude the foregoing evidence supports a finding that the parties
intended for the March 6 Agreement to be signed in order to be binding. We now
address appellee’s response to appellant’s issue, specifically that no physical
signature was required and that instead the emails between the parties’ counsel were
sufficient to satisfy the signature requirement of the March 6 Agreement. Appellee
relies in part on a Counterparts provision in the March 6 Agreement, which provides
for electronic signatures:
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original, and such counterparts will
together constitute one and the same instrument. The Parties agree that
this Agreement may be signed electronically pursuant to the ESIGN
Act, and agree that the electronic signatures appearing on this
Agreement are the same as handwritten signatures for the purposes of
validity, enforceability, and admissibility.
3
In its second issue, appellant challenges the trial court’s ruling to exclude certain exhibits it attempted
to introduce at the hearing: emails from Walz dated March 2 and June 7 and 8. Appellee objected to the
March 2 email exhibit as “coming at such a late moment,” and the trial court did not rule. When appellant
attempted to introduce the June 7 and 8 emails as its second and third exhibits, appellee again objected.
The trial court judge ultimately stated, “I don’t find these to be relevant because your issue is decided well
before then so I am happy to return them to you and not have them admitted but—I think your problem is
back on the 6th.” Accordingly, it is unclear that the judge was excluding the March 2 email at all.
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Appellee also relies on the following March 3 email from appellant’s counsel to
appellee’s counsel:
Bradley. Thank you for this. My client has reviewed and I have made
some modifications that should not present a problem. At most they
tighten up things. I also need at least 14 days to make the payment.
Please review and confirm your approval.
According to appellee, this email “constituted an electronic form of their contract
that was electronically signed.” Appellee then points to the March 6 email as
evidence of its electronic signature:
Tony:
These changes are fine. Please accept them and send me a signed copy
of the Agreement for my client to countersign.4
Thanks for working with us to get this one resolved.
Additionally, appellee cites decisions holding signature blocks and typed
names in emails can provide signatures necessary for an enforceable contract. See,
Williamson v. Bank of New York Mellon, 947 F. Supp. 2d 704, 711 (N.D. Tex. 2013)
(making an Eerie guess that a manually typed name on an email or an automatically
attached signature block to an email constitutes an electronic signature); Perdido
Props. LLC on Behalf of Bremer v. Devon Energy Prod. Co., L.P., 669 S.W.3d 535,
561 (Tex. App.—Eastland 2023, pet. filed) (holding “either a typed name or a
signature block at the end of an email is sufficient to constitute a signature”); Khoury
4
At the hearing on appellant’s special appearance, appellee represented this statement was
“memorializing and trying to avoid this very dispute about whether or not there is an agreement or not.”
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v. Tomlinson, 518 S.W.3d 568, 579 (Tex. App.—Houston [1st Dist.] 2017, no pet.)
(holding “that the email name or address in the ‘from’ field satisfies the definition
of a signature under existing law”). However, we conclude these decisions are
distinguishable as they each determine that an email constitutes a signature in the
context of different issues than the one presented here: whether parties intended to
bind themselves through email exchanges. See Williamson, 947 F. Supp. 2d at 711(whether typed name or email signature block satisfied requirements of Rule 11 of
the Texas Rules of Civil Procedure, which requires agreements between attorneys
or parties “touching any suit pending” to be in writing, signed and filed as part of
the record to be enforceable); Perdido, 669 S.W.3d at 559–60 (whether
acknowledgement of debt was in writing and signed by party to be charged such that
limitations could be avoided); Khoury, 518 S.W.3d at 575 (whether email from
promisee satisfied writing and signature requirement of statute of frauds as codified
in section 26.01 of the business and commerce code). Additionally, at least one
Texas court has held that where there was nothing to show the signature block was
typed by the sender and not generated automatically by her email client or that the
sender intended the block to be the sender’s signature, such evidence was
insufficient to meet the written signature requirements of Rule 11. See Cunningham
v. Zurich Am. Ins. Co., 352 S.W.3d 519, 530 (Tex. App.—Fort Worth 2011, pet.
denied).
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Moreover, we conclude appellee’s arguments that the emails could be read as
satisfying the signature requirement of the March 6 Agreement to be irreconcilable
with the terms of the agreement. The Counterparts provision in the March 6
Agreement, which provides for electronic signatures, states that the parties “agree
that the electronic signatures appearing on this Agreement are the same as
handwritten signatures for the purposes of validity, enforceability, and
admissibility.” (emphasis added). Thus, we conclude the parties intended that the
signatures must be on the March 6 Agreement rather than a separate instrument or
writing.
As for appellee’s argument that the emails themselves could be “counterparts”
to the March 6 Agreement such that the signatures could “appear” on them, we
disagree. The provision states the March 6 Agreement “may be executed in one or
more counterparts, each of which will be deemed to be an original, and such
counterparts will together constitute one and the same instrument.” Such language
is similar to that used as an example in the second part of the definition of counterpart
in Black’s Law Dictionary: “One of two or more copies or duplicates of a legal
instrument <this lease may be executed in any number of counterparts, each of which
is considered an original>.” Counterpart, BLACK’S LAW DICTIONARY (11th ed.
2019).5 Additionally, the word “counterpart” appears in the definition of “duplicate”
5
The first part of the definition reads, “In conveyancing, a corresponding part of an instrument <the
other half of the indenture — the counterpart — could not be found>.” Counterpart, BLACK’S LAW
DICTIONARY (11th ed. 2019).
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under Rule 1001 of the Texas Rules of Evidence. See TEX. R. EVID. 1001(e) (“A
‘duplicate’ means a counterpart produced by a mechanical, photographic, chemical,
electronic, or other equivalent process or technique that accurately reproduces the
original.”). Therefore, we conclude the parties did not intend for the emails here to
be counterparts sufficient to satisfy the signature requirement of the March 6
Agreement.
After considering the language of the March 6 Agreement and the evidence
considered by the trial court, we conclude the evidence is legally and factually
insufficient to support an implied finding that the parties intended to be bound by
their emails relating to the March 6 Agreement and thus executed the March 6
Agreement. Accordingly, we further conclude the trial court erred in enforcing the
consent-to-jurisdiction provision within the March 6 Agreement. As no other basis
for asserting personal jurisdiction over appellant was presented or argued to the trial
court, we conclude the trial court erred by denying appellant’s special appearance.
We sustain appellant’s first issue. Having so resolved appellant’s first issue,
we need not address the second issue regarding whether the trial court erred by
excluding appellant’s exhibits at the special appearance hearing. See TEX. R. APP.
P. 47.1, 47.4.
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CONCLUSION
We reverse the trial court’s order denying appellant’s special appearance and
render judgment dismissing all claims against appellant for lack of personal
jurisdiction.
/Nancy Kennedy/
NANCY KENNEDY
JUSTICE
240121F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
FLARB, LLC, Appellant On Appeal from the 416th Judicial
District Court, Collin County, Texas
No. 05-24-00121-CV V. Trial Court Cause No. 416-03367-
2023.
NICKELS AND DIMES Opinion delivered by Justice
INCORPORATED, Appellee Kennedy. Justices Molberg and
Nowell participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and judgment is RENDERED that:
We reverse the trial court’s order denying appellant’s special
appearance and render judgment dismissing all claims against
appellant for lack of personal jurisdiction.
It is ORDERED that appellant FLARB, LLC recover its costs of this appeal
from appellee NICKELS AND DIMES INCORPORATED.
Judgment entered this 1st day of July 2024.
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