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. 
2

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.
3

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. 
4

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, nonrepresentative) 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 
5

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 
6

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.
7

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 
8

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.
9

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 
10

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). 
11

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 
12

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 
13

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 
14

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 
15

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.