Stubhub, Inc. v. Wesley T. Ball ( 2023 )

Affirmed and Opinion filed August 29, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00844-CV
STUBHUB, INC., Appellant
V.
WESLEY T. BALL, Appellee
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2022-26586
OPINION
The dispositive issue in this appeal from the denial of a motion to compel
arbitration is whether StubHub, Inc. conclusively established that Wesley T. Ball, a
user of StubHub’s online ticket marketplace, assented to StubHub’s online user
arbitration agreement. On the present record, we conclude that StubHub’s evidence
falls short of the quantum required to prove the existence of a valid arbitration
agreement. Therefore, the trial court did not err in denying StubHub’s motion, and
we affirm the trial court’s order.
Background
StubHub operates an online global marketplace where users offer, sell, and
buy tickets from each other. In 2021, Ball purchased two tickets to a Broadway
musical using StubHub’s online marketplace. He and his daughter arrived at the
venue to discover the seats shown on his tickets already occupied by others with
identical tickets. Ball sued StubHub for various violations of the Texas Deceptive
Trade Practices Act (“DTPA”).
StubHub filed a motion to compel arbitration. StubHub asserted that its user
agreement (“User Agreement”) in effect when Ball purchased the tickets in
September 2021 contained an arbitration provision, which applied to Ball’s claims.
StubHub argued that Ball manifested his assent to the arbitration terms in the User
Agreement because he was “required to affirmatively accept” the agreement “(by
clicking a button) in order to register and create his account.”
StubHub supported its motion to compel arbitration with the unsworn
declaration of Amy Monroe, its Supervisor of Customer Experience. Monroe
described the account creation process:
5. . . . In order to purchase an item and create a StubHub
account, a potential user must agree to comply with the terms of the
User Agreement.
6. Creating a StubHub account is initiated by the prospective
user accessing StubHub’s Site (as defined in the User Agreement).
Once on StubHub’s Site, the prospective user is presented with the
options to “sign in” or “create account.” The “sign in” option is
available only to previously-registered users. When a prospective
user clicks on the “create account” link, he or she is taken to a
webpage containing the create account form. The prospective user
must complete and submit the create account form to become a
StubHub user. The prospective user is required to provide a first
and last name, phone number, and email address.
2
7. Under the current process,[ 1] by submitting the create
account form, a prospective user agrees that he or she is at least 18
years old, consents to receive communications from StubHub, and
has agreed to the User Agreement and Privacy Notice, which are
accessible from the registration form via a hyperlink. An additional
affirmative step has to be taken before a prospective user can
complete the create account process. Once a prospective user
provides the information required on the create account form and
accepts the terms of the User Agreement, StubHub sends the
prospective user a confirmation email to the email address provided
during registration. The confirmation email contains instructions
for completing the create account process and activating the user’s
account.
8. Once the prospective user receives the confirmation email
and follows the instructions for completing the create account
process and activating his or her user account, he or she becomes a
registered StubHub user with a valid StubHub user account. The
account can only be accessed by using his or her user email and
password.
Monroe stated that Ball “registered an account using his email and agreed to the User
Agreement on November 13, 2012.” Acceptance of the User Agreement, moreover,
is “mandatory to create a StubHub account.”
Two versions of the User Agreement are contained in our record. The version
in effect in 2021 when Ball purchased the tickets has the arbitration language on
which StubHub relies, but the version in effect in 2012 when Ball created his account
does not contain the arbitration provision. According to Monroe, revisions to the
User Agreement after 2012 were posted to the StubHub website according to a notice
process described in the User Agreement. Additionally, prior to each update,
“StubHub notified all registered users of the User Agreement changes via outbound
messages to users’ email addresses.” Monroe stated that Ball has not submitted an
1
In a supplemental unsworn declaration, Monroe stated that the “current” (2022) account
creation process is materially the same as the process in 2012.
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arbitration opt-out notice to StubHub, that his account remains open and active, and
that after each User Agreement amendment went into effect Ball continued to use
his StubHub account to purchase items during years 2013-2017 and 2019-2022.
The 2021 User Agreement contains the following arbitration provisions:
. . . CLAUSE 22 OF THIS AGREEMENT CONTAINS AN
AGREEMENT TO ARBITRATE, WHICH WILL, WITH
LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT
CLAIMS YOU HAVE AGAINST US TO BINDING AND
FINAL ARBITRATION, UNLESS YOU OPTOUT. UNLESS
YOU OPT OUT: (1) YOU WILL ONLY BE PERMITTED TO
PURSUE CLAIMS AGAINST STUBHUB ON AN
INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS
MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION
OR PROCEEDING, AND (2) YOU WILL ONLY BE
PERMITTED TO SEEK RELIEF (INCLUDING
MONETARY, INJUNCTIVE, AND DECLARATORY
RELIEF) ON AN INDIVIDUAL BASIS.
...
22.1 If you reside in the United States or Canada, You
and StubHub each agree, except where prohibited by law, that
any and all disputes or claims that have arisen or may arise
between you and StubHub relating in any way to or arising out
of this or previous versions of the User Agreement (including
this Agreement to Arbitrate, as the term is defined below) or the
breach or validity thereof, your use of or access to the Site or
Services, or any tickets or related passes sold or purchased
through the Site or Services shall be resolved exclusively
through final and binding arbitration administered by the
American Arbitration Association (“AAA”) in accordance with
its Consumer Arbitration Rules (“Rules”), rather than in court,
except that you may assert claims in small claims court, if your
claims qualify and so long as the matter remains in such court
and advances only on an individual (non-class, non-
representative) basis (together with subsections 22(A)-(F), the
“Agreement to Arbitrate”). This Agreement to Arbitrate is
intended to be broadly interpreted. The Federal Arbitration Act
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governs the interpretation and enforcement of this Agreement to
Arbitrate.
Ball filed a response to StubHub’s motion to compel. He neither objected to
Monroe’s declaration nor attached any controverting evidence. He argued, however,
that StubHub failed to prove that he received notice of the User Agreement
containing the arbitration provisions and thus failed to conclusively establish his
assent to any arbitration agreement. He presented several reasons why notice was
allegedly lacking, but all of them are iterations of the same fundamental point:
StubHub presented no evidence of the process that put users on notice that they
would be bound by the User Agreement containing the arbitration agreement.
The trial court denied StubHub’s motion to compel arbitration. StubHub
timely filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.016.
Analysis
In a single issue, StubHub asserts that the trial court erred in denying its
motion to compel arbitration because it presented uncontroverted evidence that
Ball’s DTPA claims fell within the scope of a valid, enforceable arbitration
agreement. Ball counters that StubHub failed to present sufficient evidence that he
was notified of the User Agreement—i.e., that there was a “meeting of the minds”
as to the agreement.
A. Governing Law and Standard of Review
The Federal Arbitration Act (“FAA”) generally governs arbitration provisions
in contracts involving interstate commerce. See 9 U.S.C. § 2; see also In re L & L
Kempwood Assocs., L.P., 9 S.W.3d 125, 127 (Tex. 1999) (per curiam) (orig.
proceeding). Parties may also expressly agree to arbitrate under the FAA. In re
AdvancePCS Health L.P., 172 S.W.3d 603, 605-06 & n.3 (Tex. 2005) (per curiam)
(orig. proceeding). The arbitration agreement here expressly provides for arbitration
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under the FAA, 2 and, although Ball opposes arbitration, he does not contest the
application of the FAA.
A party seeking to compel arbitration under the FAA must first establish that
(1) there is a valid arbitration agreement and (2) the claims in dispute fall within that
agreement’s scope. See In re Rubiola, 334 S.W.3d 220, 223 (Tex. 2011) (orig.
proceeding); 9 U.S.C. §§ 2, 4. Although there is a strong presumption favoring
arbitration, that presumption arises only after the party seeking to compel arbitration
proves that a valid arbitration agreement exists. J.M. Davidson, Inc. v. Webster, 128
S.W.3d 223, 227 (Tex. 2003); see In re Estate of Guerrero, 465 S.W.3d 693, 699-
703 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc).
Under Texas law, the trial court conducts a summary proceeding to determine
the applicability of an arbitration clause. In re Weekley Homes, L.P., 180 S.W.3d
127, 130 (Tex. 2005) (orig. proceeding); Jack B. Anglin Co., Inc. v. Tipps, 842
S.W.2d 266, 269 (Tex. 1992). A motion to compel arbitration is similar to a motion
for partial summary judgment and is subject to the same evidentiary standards. In
re Jebbia, 26 S.W.3d 753, 756-57 (Tex. App.—Houston [14th Dist.] 2000, orig.
proceeding). Thus, the party alleging an arbitration agreement must present
summary proof that an agreement to arbitrate requires arbitration of the claims in
dispute. Tipps, 842 S.W.2d at 269; Jebbia, 26 S.W.3d at 757. The party resisting
arbitration may then contest the proponent’s proof or present evidence supporting
the elements of a defense to enforcement of the arbitration agreement. Jebbia, 26
S.W.3d at 757. If a material fact issue is raised, an evidentiary hearing is required.
Tipps, 842 S.W.2d at 269. But in cases when the movant’s evidence remains
uncontroverted, the court must accept as true “the clear, direct, and positive evidence
2
See 9 U.S.C. §§ 1-402.
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of an undisputed affidavit, even of a party’s agent.” Id. at 270.
We review a trial court’s order denying a motion to compel arbitration for
abuse of discretion. Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). We
defer to the trial court’s factual determinations if they are supported by evidence but
review its legal determinations de novo. Id.; Smart Call, LLC v. Genio Mobile, Inc.,
No. 14-13-00223-CV, 2014 WL 3955083, at *4 (Tex. App.—Houston [14th Dist.]
Aug. 14, 2014, pet. denied) (mem. op.). The trial court’s determination of the
arbitration agreement’s existence and validity are legal questions subject to de novo
review. Jody James Farms, JV v. Altman Grp., Inc., 547 S.W.3d 624, 633 (Tex.
2018); J.M. Davidson, 128 S.W.3d 223, 227.
B. StubHub’s Motion to Compel Arbitration
1. Online agreements are generally enforceable in Texas.
We apply ordinary principles of state contract law to determine whether the
parties agreed to submit disputes to arbitration. See In re Kellogg Brown & Root,
Inc., 166 S.W.3d 732, 738 (Tex. 2005) (citing First Options of Chi., Inc. v. Kaplan,
514 U.S. 938, 944 (1995)). For the User Agreement to be enforceable against Ball,
he must have consented to its terms. Aerotek v. Boyd, 624 S.W.3d 199, 204 (Tex.
2021); Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007). Mutual assent
is the only contract element in dispute.
Whether mutual assent exists as to a contract’s subject matter and essential
terms is an objective inquiry, turning on what the parties said and did, not on their
subjective states of mind. Angelou v. African Overseas Union, 33 S.W.3d 269, 278
(Tex. App.—Houston [14th Dist.] 2000, no pet.). Parties may manifest their assent
to an agreement not only by signing a written document but by conduct, provided
they intend to engage in the conduct and know or have reason to know that the other
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party may infer assent from their conduct. See BPX Operating Co. v. Strickhausen,
629 S.W.3d 189, 202 (Tex. 2021). This principle generally applies to arbitration
agreements. See Mid-Continent Cas. Co. v. Glob. Enercom Mgmt., Inc., 323 S.W.3d
151, 157 (Tex. 2010); GSC Wholesale, LLC v. Young, 654 S.W.3d 558, 563 (Tex.
App.—Houston [14th Dist.] 2023, pet. denied); Smart Call, 2014 WL 3955083, at
*5. Whether mutual assent exists is usually a question of fact, but it may become a
question of law in some instances. Foreca, S.A., v. GRD Dev. Co., 758 S.W.2d 744,
745-46 (Tex. 1988).
Today’s case involves the purported formation of an agreement over the
internet based on Ball’s interaction with StubHub’s website. 3 Like StubHub, many
individuals and entities engaging in internet business have developed terms and
conditions intended to be applicable to their transactions or relationships. Sellers or
service providers commonly condition use of their websites on acceptance of such
terms or require consent to them before a transaction can be completed. Texas courts
have recognized the validity of electronic contracts reached over the internet. See,
e.g., Barnett v. Network Sols., 38 S.W.3d 200, 204 (Tex. App.—Eastland 2001, pet.
denied); Bongalis-Royer v. RJ Worldwide, LLC, No. 4:14-CV-330, 2015 WL
12778846, at *5 (E.D. Tex. July 16, 2015).
Online or website users may manifest assent to terms and conditions by any
number of processes or mechanisms, depending on how the website is designed.
StubHub contends that Ball manifested his consent to the User Agreement by
“clicking a button” indicating his affirmative acceptance of the terms when he
3
Ball asserts that he purchased his tickets through StubHub’s mobile application, as
distinguished from its website. He contends that StubHub failed to prove that it provided notice
of the User Agreement through the mobile application and that StubHub failed to explain the
differences between purchasing tickets on the website as opposed to the mobile application.
Because Ball presented no evidence that he purchased the tickets using a mobile application, we
do not consider these arguments.
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created his account in 2012. StubHub characterizes this process as a “clickwrap”
agreement. So-called “clickwrap” online agreements are generally defined by the
requirement that users assent to contract terms by “clicking” some form of “I agree”
or “accept” button on a website to complete the transaction. See, e.g., Nicosia v.
Amazon.com, Inc., 834 F.3d 220, 233 (2d Cir. 2016); In re Online Travel Co., 953
F. Supp. 2d 713, 718-20 (N.D. Tex. 2013); Am. Eyewear, Inc. v. Peeper’s Sunglasses
& Accessories, Inc., 106 F. Supp. 2d 895, 905 n.15 (N.D. Tex. 2000). Texas state
and federal courts have recognized the validity of clickwrap agreements. See, e.g.,
Fieldtech Avionics & Instruments, Inc. v. Component Control.Com, Inc., 262
S.W.3d 813, 818 n.1 (Tex. App.—Fort Worth 2008, no pet.); Barnett, 38 S.W.3d at
204; see also King v. Baylor Univ., 46 F.4th 344, 358-59 (5th Cir. 2022); Recursion
Software, Inc. v. Interactive Intelligence, Inc., 425 F. Supp. 2d 756, 782-83 (N.D.
Tex. 2006); Realpage, Inc. v. EPS, Inc., 560 F. Supp. 2d 539, 545 (E.D. Tex. 2007).
Structured properly, a clickwrap agreement would conclusively demonstrate notice
and acceptance of the agreement’s terms. And a customer on notice of contract terms
available on the internet website is bound by those terms. One Beacon Ins. Co. v.
Crowley Marine Servs., Inc., 648 F.3d 258, 268 (5th Cir. 2011) (citation omitted).
Courts have also considered mechanisms by which users may manifest assent
to online agreements other than by an explicit affirmative acceptance process.
“Browsewrap” agreements, for example, are distinguishable from clickwrap
agreements and typically involve a situation where a notice on a website conditions
use of the site upon compliance with certain terms or conditions, which may be
included on the same page as the notice or accessible via a hyperlink. See, e.g., Sw.
Airlines Co. v. BoardFirst, L.L.C., Civ. A. No. 3:06-CV-0891-B, 2007 WL 4823761,
at *4 (N.D. Tex. Sept. 12, 2007). A defining feature of a browsewrap agreement is
that it does not require the user to manifest assent to the terms and conditions
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expressly; the user need not sign a document or click on an “accept” or “I agree”
button. A party instead gives his or her assent simply by using the website. Id.“Whereas courts routinely enforce clickwrap agreements, . . . the validity of a
browsewrap license turns on whether a website user has actual or constructive
knowledge of a site’s terms and conditions prior to using the site.” Phillips v.
Neutron Holdings, Inc., No. 3:18-CV-3382-S, 2019 WL 4861435, at *4 (N.D. Tex.
Oct. 2, 2019) (citations omitted); see Sw. Airlines, 2007 WL 4823761, at *5. 4
Yet another variation consists of so-called “sign-in-wraps.” A sign-in-wrap
agreement notifies users of the existence of the website’s terms and conditions and
advises users that they are agreeing to the terms when registering an account or
signing in. See HomeAdvisor, Inc. v. Waddell, No. 05-19-00669-CV, 2020 WL
2988565, at *3 (Tex. App.—Dallas June 4, 2020, no pet.) (mem. op.); Phillips, 2019
WL 4861435, at *4 (citing Meyer v. Uber Tech., Inc., 868 F.3d 66, 75-76 (2d Cir.
2017)). As with browsewrap agreements, a sign-in-wrap agreement’s enforceability
generally turns on whether notice of the terms and conditions was reasonably
conspicuous. HomeAdvisor, 2020 WL 2988565, at *3 (holding that HomeAdvisor’s
submittal screen provided appellees reasonably conspicuous notice of the company’s
terms of service, including the arbitration provision); see also Walker v. Neutron
Holdings, Inc., No. 1:19-CV-574-RP, 2020 WL 703268, at *3 (W.D. Tex. Feb. 11,
2020); Phillips, 2019 WL 4861435, at *4.
As mentioned, StubHub contends its account creation process constitutes a
clickwrap type agreement. Ball does not take a position as to whether the process
would result in a clickwrap, browsewrap, or sign-in-wrap agreement; he asserts only
4
See for example the Second Circuit’s treatment of browsewrap agreements in
Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2nd Cir. 2004), and Specht v. Netscape
Communications Corp., 306 F.3d 17 (2nd Cir. 2002).
10
that StubHub failed to prove that he had notice that he would be bound by the User
Agreement’s terms.
2. StubHub did not conclusively prove Ball assented to the online User
Agreement containing the arbitration provisions.
With these concepts in mind, we consider whether StubHub proved that Ball
assented to the arbitration agreement. When parties have agreed to conduct a
transaction by electronic means, an electronic record indicating assent to an
agreement can be proven “in any manner.” See Tex. Bus. & Com. Code § 322.009.
If a party’s uncontroverted affidavit is clear, direct, and positive, the court must
accept it. Tipps, 842 S.W.2d at 270.
We conclude that Monroe’s declaration and supplemental declaration, though
undisputed, are not sufficiently clear, direct, and positive in their description of the
account registration process to show conclusively that Ball assented to the User
Agreement when he created his account, given StubHub’s contention that the
agreement is a clickwrap. We view the sufficiency of the proof in the context of the
issue sought to be proved. If the account creation process in 2012 required Ball to
accept the User Agreement by affirmatively clicking a button confirming his
acceptance of the terms, then the assertions in the declarations should be clearer and
more specific in order to demonstrate Ball’s unambiguous assent as a matter of law.
While Monroe plainly states that the User Agreement’s terms must be accepted to
create an account, the declarations do not explain how a potential user manifests that
acceptance during the registration process. Nowhere in either declaration does
Monroe attest that when Ball created his StubHub account in 2012 he affirmatively
clicked on a button indicating he explicitly accepted the User Agreement. Monroe’s
statements are not sufficiently clear, direct, and positive to establish that the User
Agreement is a clickwrap because they are simply too general. Cases in which courts
11
uphold the validity of clickwrap agreements have involved evidence describing the
clickwrap process in more detail than that presented here by StubHub. See, e.g., JLR
Glob., LLC v. PayPal Holding Co., No. 4:22-CV-559, 2023 WL 2527158, at *4
(E.D. Tex., Mar. 15, 2023) (mem. op. & order) (“PayPal has presented a declaration
of an employee, who established that it would have been impossible for the two
relevant PayPal accounts to have been created without affirmatively clicking and
agreeing to the User Agreement.” (emphasis added)); Johnson v. Sw. Recovery
Servs., Inc., No. 3:22-CV-X-BH, 2023 WL 1944127, at *1-2, 7 (N.D. Tex. Jan. 24,
2023) (magistrate’s findings, conclusions, and recommendation) (defendant
presented employee declaration, screenshots of blank webforms, and user
agreements containing arbitration agreement; webforms specified that by clicking
the button to complete an order, users were accepting and agreeing to hyperlinked
terms of use agreement; declaration stated that plaintiff completed the webforms and
clicked the button at the bottom of the forms); In re Online Travel Co., 953 F. Supp.
2d 713, 718-19 (N.D. Tex. 2013) (“Since the User Agreement was conspicuously
presented and Plaintiffs assented to the User Agreement by clicking the ‘Accept’
button to complete each online transaction, it is a valid clickwrap agreement”). It
may be the case that Ball did indeed manifest his assent by affirmatively clicking an
“I accept” button or the like, but the declarations as worded do not say so. Their
level of generality could just as well refer to a sign-in-wrap or something else.
The type of electronic assent secured by the online process makes a difference
because if the agreement is something other than a clickwrap, StubHub would be
required to present evidence that Ball had actual or constructive notice that he would
be bound by the User Agreement’s terms when creating the account or at least that
the terms were reasonably conspicuous. StubHub presented no evidence bearing on
notice or conspicuousness relating to the 2012 account creation process. There was
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no description of each affirmative step Ball had to take to complete the registration
process; there was no evidence of the screenshots that Ball would have seen when
he registered his account; and there was no explanation of the text that was presented
to Ball.
If the User Agreement is more like a sign-in-wrap, StubHub’s evidence lacks
clear, direct, and positive facts demonstrating reasonably conspicuous notice of the
User Agreement’s terms or that Ball would be bound to them. Cf. HomeAdvisor,
2020 WL 2988565, at *4 (noting that screen shots of HomeAdvisor’s submittal
pages showed that they were “uncluttered, with only a few spaces to enter
information, and a large orange submit button with the phrase ‘By submitting this
request, you are agreeing to our Terms & Conditions’ written directly underneath,”
and text hyperlinking the agreement’s terms was “dark against a bright white
background, clearly legible, and the same size as all of the text on the screen”).
StubHub did not include any screen shots from its registration webpages to enable
the court to evaluate whether StubHub provided Ball with “reasonably conspicuous
notice” of its User Agreement. Compare Berkson v. Gogo, LLC, 97 F. Supp. 3d 359,
404 (E.D.N.Y. 2015) (mem. & order) (finding that “terms of use” were not made
“readily and obviously available to [the consumer]” where the “hyperlink to the
‘terms of use’ was not in large font, all caps, or in bold”), with Whitt v. Prosper
Funding LLC, No. 1:15-CV-136-(GHW), 2015 WL 4254062, at *1 (S.D.N.Y. July
14, 2015) (finding agreement to arbitrate where the term “borrower registration
agreement,” was underlined and shaded blue to signify a hyperlink), and Fteja v.
Facebook, Inc., 841 F. Supp. 2d 829, 835 (S.D.N.Y. 2012) (hyperlink was
underlined and near words to the effect that by clicking on the sign up button, the
consumer is indicating that the consumer has read and agrees to the Terms of
Service). “[I]n the context of web-based contracts, . . . clarity and conspicuousness
13
are a function of the design and content of the relevant interface.” Meyer, 868 F.3d
at 75. By failing to provide any evidence of the design and content of the relevant
user interface, StubHub has not conclusively established that it provided Ball with
sufficient notice of the User Agreement containing the arbitration provision. For
these reasons, StubHub failed to meet its initial burden to show that Ball assented to
the User Agreement in 2012.
The arbitration provisions only appear in the 2021 version of the User
Agreement, and StubHub contends that it provided Ball notice of the revised terms
by posting them on its website and by email. Here again, Monroe’s declarations
only briefly refer to the notification process for the revised agreements and do not
establish conclusively that Ball assented to the 2021 version. Although the 2012
version contains change-of-terms provisions, the evidence does not show that Ball
assented to the 2012 User Agreement, so it is not established that he agreed to the
change-of-terms provisions. Additionally, Monroe testified that StubHub “notified
all registered users of the User Agreement changes” by email, but copies of the
emails (to Ball or any other user) are not attached nor is their content described in
any way. See Precision Directional Servs., Inc. v. Ferron, No. 14-21-00082-CV,
2022 WL 3592330, at *3-5 (Tex. App.—Houston [14th Dist.] Aug. 23, 2022, no
pet.) (mem. op.) (holding that defendant failed to prove it gave notice of the
agreement modification).
Though Monroe’s declarations constitute some evidence of an agreement,
they do not show conclusively that Ball assented to the User Agreement containing
the arbitration provision. The trial court could have reasonably concluded that
StubHub failed to prove the existence of an arbitration agreement. When a movant
seeking to compel arbitration fails in its initial burden to prove the existence of a
valid arbitration agreement, the trial court does not err in denying the motion. See
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Smart Call, 2014 WL 3955083, at *6-7. StubHub has not shown an abuse of
discretion. Id.Conclusion
In sum, as the record stands today, we conclude that the trial court did not err
in denying StubHub’s motion to compel arbitration. Accordingly, we overrule
StubHub’s sole appellate issue. We affirm the trial court’s order denying StubHub’s
motion to compel arbitration.
/s/ Kevin Jewell
Justice
Panel consists of Justices Wise, Jewell, and Poissant.
15