Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 14th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-06084
Justices Bridges, Lang-Miers, and Evans.
ELIZABETH LANG-MIERS JUSTICE.
Krueger appeals the trial court's order dismissing his
lawsuit against Pulse Evolution Corp. Pulse moved to dismiss
the lawsuit arguing that its employment agreement with
Krueger, formerly Pulse's chief financial officer,
contained a forum selection clause and an arbitration clause
requiring the parties to resolve their disputes in Florida.
Krueger argued that his claims do not fall within the scope
of the employment agreement and are not subject to the forum
selection clause. We agree with Pulse and affirm the trial
court's order dismissing Krueger's claims.
states in its motion to dismiss that it is a Nevada
corporation with its headquarters in Florida. It is a digital
production and intellectual property company that produces
specialized, high-impact applications of computer-generated
human likeness for use in entertainment, life sciences,
education, and telecommunication. It develops "virtual
humans" for live and holographic concerts, advertising,
feature films, branded content, medical applications, and
training. In May 2014, Krueger became the executive vice
president and chief financial officer of a subsidiary of
Pulse and signed an employment agreement with the subsidiary.
At some point, Pulse assumed the employment agreement and
Krueger became Pulse's CFO. Paragraph 25 of the
employment agreement contained an arbitration clause and a
forum selection clause:
25. Dispute Resolution; Attorneys' Fees; Waiver of
Jury Trial. Any dispute under this Agreement shall be
resolved by arbitration conducted in Palm Beach County,
Florida, in accordance with the Commercial Arbitration Rules
of the American Arbitration Association (the
"Rules") in effect at the time a demand
for arbitration is first made, which Rules are incorporated
by reference into this clause. The requirements of AAA
relating to Florida licensed legal counsel and the notices
and fees associated with appearance of Florida counsel not
licensed in Florida are waived. A single arbitrator shall be
chosen by mutual agreement of the parties. If the parties
cannot agree on a single arbitrator, then the arbitration
shall be conducted by three (3) arbitrators whereby each
party shall choose one (1) arbitrator and those two (2)
arbitrators shall select a third arbitrator. The arbitration
shall be conducted in a single hearing, and the arbitrator(s)
shall render his/her/their decision within a reasonable time
after the conclusion of the hearing. In a written decision,
the arbitrator(s) shall specify the basis for his/her/their
decision, the basis for the damages award and a breakdown of
the damages awarded, and the basis of any other remedy. With
regard to any arbitration or other proceeding filed or
brought by any of the parties against another party, each
party shall bear his/its own fees and costs; provided,
however, that the Prevailing Party (defined below) shall be
entitled to recover all of its reasonable costs and expenses
incurred in connection with such dispute, including expenses,
court costs, witness fees and legal and accounting fees. The
term "Prevailing Party" means that party whose
position is substantially upheld in a final judgment rendered
in such proceeding. The arbitrator's decision shall be
considered as a final and binding resolution of the dispute,
shall not be subject to appeal and may be entered as an order
in any court of competent jurisdiction in the United States.
The parties agree to submit to the jurisdiction of any such
court for purposes of the enforcement of any such order. The
provisions of this Agreement shall be binding upon the
arbitrator. Any arbitration proceeding shall be conducted on
a confidential basis. The arbitrator's discretion to
fashion remedies hereunder shall be no broader or narrower
than the legal and equitable remedies available to a court.
Either party may seek provisional relief in an appropriate
court as allowed by law. In the event that arbitration cannot
be compelled or in order to enforce arbitration, each party
submits to the exclusive jurisdiction of any state or federal
(if it has or can acquire jurisdiction) court in Port St.
Lucie County, Florida, and waives all defenses with respect
to jurisdiction or venue. TO THE EXTENT PERMIITED BY LAW,
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO A
TRIAL BY JURY IN ANY SUIT. [sic] ACTION OR OTHER PROCEEDING
INSTITUTED BY OR AGAINST SUCH PARTY IN RESPECT OF ITS OR HIS
eight months after Krueger signed the employment agreement,
Pulse terminated his employment. Krueger asked Pulse to
inform its current and prospective investors and the public
generally that he was no longer associated with Pulse.
However, Pulse continued to represent Krueger as Pulse's
CFO on its website, and Krueger sued Pulse in Dallas County.
The lawsuit alleged, among other things, that Pulse
misappropriated Krueger's name and represented that
Krueger was still affiliated with Pulse to induce creditors
and vendors to extend services and accept stock and equity in
Pulse. Pulse moved to dismiss Krueger's claims pursuant
to the forum selection clause. The trial court granted
Pulse's motion and dismissed Krueger's lawsuit
without prejudice. Krueger appeals.
of Review & Applicable Law
review a trial court's order dismissing a lawsuit for an
abuse of discretion. Chandler Mgmt. Corp. v. First
Specialty Ins. Corp., 452 S.W.3d 887, 891 (Tex.
App.-Dallas 2014, no pet.). When the order is based on the
interpretation of a contract containing a forum selection
clause, we review the trial court's interpretation of the
contract de novo. CNOOC Se. Asia Ltd. v. Paladin Res.
(SUNDA) Ltd., 222 S.W.3d 889, 894 (Tex. App.-Dallas
2007, pet. denied).
selection clauses are generally enforceable and presumptively
valid." In re Laibe Corp., 307 S.W.3d 314, 316
(Tex. 2010). When deciding whether to enforce a forum
selection clause, a court must determine whether the claims
fall within the scope of the clause. Deep Water Slender
Wells, Ltd. v. Shell Int'l Expl. & Prod., Inc.,
234 S.W.3d 679, 687 (Tex. App.-Houston [14th Dist.] 2007,
pet. denied); see also RSR Corp. v. Siegmund, 309
S.W.3d 686, 700 (Tex. App.-Dallas 2010, no pet.). A court
makes this determination based on the language of the clause
and the nature of the claims asserted in the lawsuit.
Deep Water Slender Wells, 234 S.W.3d at 687; RSR
Corp., 309 S.W.3d at 700. In examining the claims
asserted in the lawsuit, a court does not
"'slavish[ly] adhere to a contract/tort
distinction.'" In re Int'l Profit Assocs.,
Inc., 274 S.W.3d 672, 677 (Tex. 2009) (per curiam)
(quoting Ginter ex rel. Ballard v. Belcher, Prendergast
& Laporte, 536 F.3d 439, 444 (5th Cir. 2008)).
Instead, the court must examine the claims in "a
common-sense" manner being wary of "artful
pleading" that "would allow a litigant to avoid a
forum-selection clause." Id.
construe a contract containing a forum selection clause under
general contract principles. CNOOC Se. Asia Ltd.,
222 S.W.3d at 895. Contract construction begins with the
contract's plain language. Id. We presume the
parties intended each contractual provision to have meaning,
and we attempt to harmonize its provisions so that none is
rendered meaningless. Id. We give terms their plain,
ordinary, and generally accepted meaning unless the contract
shows a different meaning was intended. See Valance
Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex.
"issue presented, " Krueger argues that the trial
court erred by granting Pulse's motion to dismiss and
dismissing his lawsuit based on paragraph 25 of the
employment agreement. Within this issue, Krueger makes two
points: (1) the trial court erred by dismissing his lawsuit
"because the narrow forum selection clause in the
Employment Agreement, which applies only to 'disputes
under [the] Agreement, ' does not apply to the dismissed
claims"; and (2) "[t]he trial court erred to the
extent that it ...