Affirmed and Opinion filed July 8, 2021.

In The

Fourteenth Court of Appeals

NO. 14-20-00026-CV

SH SALON L.L.C., Appellant

V.

MIDTOWN MARKET MISSOURI CITY, TX, L.L.C., Appellee

On Appeal from the 434th Judicial District Court

Fort Bend County, Texas

Trial Court Cause No. 19-DCV-265077

OPINION

In this appeal from an order granting a motion to dismiss, we consider two

separate challenges to the applicability and enforceability of a forum-selection 

clause. For the reasons given below, we overrule both challenges and affirm the trial 

court’s order.

BACKGROUND

This is a dispute between a landlord, Midtown Market Missouri City, TX, 

L.L.C. (“Midtown”), and its commercial tenant, SH Salon L.L.C. (the “Salon”). The 
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tenancy was located in a shopping center, and according to the Salon, Midtown failed 

to make the shopping center safe, which allegedly caused a decline in the Salon’s 

business. For this and other reasons, the Salon filed an original petition against 

Midtown, seeking damages for negligence and violations of the DTPA. The Salon 

also sought declaratory relief relating to the balance owed under the lease, if any.

The Salon filed its original petition in Fort Bend County, Texas, which is also 

the location of the tenancy at issue. Midtown responded by filing a motion to 

dismiss, which invoked a forum-selection clause in the Salon’s lease that mandated 

a venue in Monroe County, New York.

After a brief hearing, the trial court granted Midtown’s motion to dismiss, and 

this appeal followed.

APPLICABILITY CHALLENGE

We begin with the threshold question of whether the forum-selection clause 

applies to the Salon’s claims. To the extent this question requires the interpretation 

of an unambiguous contract, our standard of review is de novo. See Deep Water 

Slender Wells, Ltd. v. Shell Int’l Exploration & Prod., Inc., 234 S.W.3d 679, 687 

(Tex. App.—Houston [14th Dist.] 2007, pet. denied).

The starting point in our inquiry is the language of the lease, which provides 

in material part as follows:

Landlord and Tenant agree that this Lease shall be governed by and 

construed in accordance with the domestic laws of the State of New 

York without giving effect to any choice or conflict of law provision or 

rule (whether of the State of New York or any other jurisdiction) that 

would cause the application of the laws of any jurisdiction other than 

the State of New York. Landlord and Tenant further agree that any 

action, suit or proceeding arising out of or relating to this Lease, or the 

parties’ relationship arising out of the Lease, shall be adjudicated 

exclusively in New York State Supreme Court, Monroe County, New 
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York, and the parties expressly, specifically, and irrevocably consent to 

the personal jurisdiction and venue of such court. Tenant further 

acknowledges that Tenant transacted business in New York State by 

entering into this Lease. In the event of an action, suit or proceeding 

arising out of or relating to this Lease, or the parties’ relationship arising 

out of the Lease, Tenant waives all objections to venue on the grounds 

of forum non conveniens or for any other reason.

Even though the lease is governed by the laws of New York, the question of 

whether the Salon’s claims should be dismissed based on the forum-selection clause 

is a matter governed by Texas law. See In re Lisa Laser USA, Inc., 310 S.W.3d 880, 

883 n.2 (Tex. 2010) (orig. proceeding) (per curiam). And under Texas law, we look 

at the factual allegations undergirding the claims when deciding whether the claims 

are encompassed by the forum-selection clause. See Pinto Tech. Ventures, L.P. v. 

Sheldon, 526 S.W.3d 428, 433 (Tex. 2017). This analysis requires a common-sense 

examination of the claims’ substance, rather than their label. Id. at 437.

The Salon’s negligence claim is based on Midtown’s alleged failure to keep 

the shopping center “safe from crime and undesirable persons.” The Salon alleges

that disreputable men have begun to loiter outside the shopping center, which has 

deterred the Salon’s base of female customers. The Salon also alleges that Midtown 

has failed to provide any sort of security personnel or security lighting. Though these 

allegations are labeled as a tort, they all arise out of the Salon’s contractual 

relationship with Midtown. But for the commercial lease between these two parties, 

the claim would not exist. Id. at 437–38 (noting that the words “arising out of” have 

“broad significance” and connote a “but for” causal connection, which “literally 

embraces every event that hindsight can logically identify in the causative chain”).

The Salon’s DTPA claim focuses on several alleged misrepresentations, all of 

which focus on the landlord-tenant relationship between the two parties. Broadly 

speaking, the Salon alleges that Midtown falsely represented that the Salon could 
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use certain signage to advertise its business, that Midtown would promote the Salon 

and other businesses in the shopping center, and that Midtown would keep the 

shopping center well-lit and staffed with security. As with the Salon’s negligence 

claim, all of these allegations arise out of the Salon’s lease and would not exist but 

for that lease.

In its final claim for declaratory relief, the Salon requests the trial court “to 

declare the balance, if any, owed by the tenants under the contract.” On its face, this 

claim plainly arises out of the lease.

The Salon summarily argues in its brief that the forum-selection clause should 

not apply because the Salon “is not seeking relief under the terms of the Lease.” This 

argument misses the mark, as the relevant inquiry is whether the Salon’s claims 

“aris[e] out of or relat[e] to this Lease, or the parties’ relationship arising out of the 

Lease.” For the reasons explained above, we conclude that all of the Salon’s claims 

arise out of the lease. Therefore, the trial court correctly determined that the forumselection clause applies to the Salon’s claims.

ENFORCEABILITY CHALLENGE

Forum-selection clauses are generally enforceable, and we presume that the 

clause here is valid. See In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (orig. 

proceeding) (per curiam). As the opponent of that presumption, the Salon had the 

“heavy” burden of showing 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. Id. By granting Midtown’s 

motion to dismiss, the trial court implicitly determined that the Salon did not satisfy 

this burden. We review that determination for an abuse of discretion. See In re Int’l 
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Profit Assocs., Inc., 274 S.W.3d 672, 675 (Tex. 2009) (orig. proceeding) (per 

curiam).

In the proceedings below, the Salon relied on the affidavit testimony of its 

majority owner, who asserted that Monroe County was a seriously inconvenient 

venue. The owner’s testimony consisted of just two sentences: “All potential 

witnesses I could call to testify on my behalf concerning my claims work and live in 

Texas, predominantly Fort Bend County. Said witnesses consist of former fellow 

shop owners in the previously stated shopping center, or employees of these shop 

owners, all residents of Texas.”

The trial court did not abuse its discretion by refusing to give this testimony 

more weight. When, as here, a party could have foreseen at the time of contracting 

the inconvenience of having to litigate a claim in a foreign forum, the party cannot 

escape the contract’s forum-selection clause unless the party shows that “trial in the 

contractual forum will be so gravely difficult and inconvenient that [the party] will 

for all practice purposes be deprived of [its] day in court.” See In re AIU Ins. Co., 

148 S.W.3d 109, 113 (Tex. 2004) (orig. proceeding). The mere fact that most of the 

Salon’s witnesses reside in Texas does not establish as a matter of law that the Salon 

would be deprived of its day in court if the venue were moved to New York. Id. at 

112 (rejecting an argument that a forum-selection clause was unenforceable where 

“many if not most potential witnesses” were in Texas while the chosen forum was 

in New York); see also In re Lyon Fin. Servs., Inc., 257 S.W.3d 228, 234 (Tex. 2008) 

(orig. proceeding) (per curiam) (“If merely stating that financial and logistical 

difficulties will preclude litigation in another state suffices to avoid a forumselection clause, the clauses are practically useless.”). The Salon did not show or 

even argue that it would be precluded from taking depositions of Texas witnesses 

for presentation in a New York court. Based on the paucity of evidence presented, 
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we cannot say that the trial court abused its discretion by enforcing the forumselection clause.

In another point, the Salon argues that the case should remain in Texas 

because both parties are Texas entities. But this point is refuted by the record. The 

Salon represented in its original petition that Midtown was a “foreign limited 

liability company.” The Salon even produced evidence of a parallel lawsuit 

involving the same parties that was filed in Monroe County, and in that other lawsuit, 

Midtown represented that its principal place of business was in Rochester, New 

York, which is the seat of Monroe County.

In one final point, the Salon argues that enforcing the forum-selection clause 

would subvert the public policy of this state because the Salon has asserted a DTPA 

claim and the forum-selection clause does not comply with the DTPA’s anti-waiver 

provision. See Tex. Bus. & Com. Code § 17.42(c) (requiring a waiver to be 

conspicuous, identified by a type of heading, and consistent with a particular form). 

The Salon has not cited to any authority in which a court has invalidated a forumselection clause under the DTPA’s anti-waiver provision. Nor are we aware of any 

such authority. To the contrary, our research shows that courts have enforced forumselection clauses, despite a supposed noncompliance with the DTPA’s anti-waiver 

provision. See, e.g., Hoskins v. Gulf Stream Coach, Inc., No. 14-11-00703-CV, 2012 

WL 2394055, at *3–4 (Tex. App.—Houston [14th Dist.] June 26, 2012, no pet.) 

(mem. op.) (explaining that the DTPA’s anti-waiver provision was never triggered); 

CK DFW Partners Ltd. v. City Kitchens, Inc., No. 3:06-CV-1598-D, 2007 WL 

2381259, at *7 (N.D. Tex. Aug. 17, 2007) (“Contract provisions directing that suit 

be filed in California and that the laws of California are applied do not constitute an 

impermissible waiver of rights in violation of public policy under § 17.42 of the 

DTPA.”).
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The Fifth Circuit has given the following explanation for refusing to apply the 

DTPA’s anti-waiver provision in the manner proposed by the Salon:

It defies reason to suggest that a plaintiff may circumvent forum 

selection and arbitration clauses merely by stating claims under laws 

not recognized by the forum selected in the agreement. A plaintiff 

simply would have to allege violations of his [state’s] tort law or his 

[state’s] statutory law or his [state’s] property law in order to render 

nugatory any forum selection clause that implicitly or explicitly 

required the application of the law of another jurisdiction. We refuse to 

allow a party’s solemn promise to be defeated by artful pleading.

Haynsworth v. The Corporation, 121 F.3d 956, 969 (5th Cir. 1997). This reasoning 

comports with the decisions of the Texas Supreme Court, which recognize that 

forum-selection clauses should not be avoided by artful pleading, see Pinto Tech. 

Ventures, 526 S.W.3d at 437, and also that DTPA claims are subject to arbitration 

(a type of forum selection) despite the DTPA’s anti-waiver provision. See Jack B. 

Anglin Co. v. Tipps, 842 S.W.2d 266, 270–71 (Tex. 1992). Accordingly, we overrule 

this final point. See Tau Kappa Epsilon v. USA Bus Charter, Inc., No. 03-10-00768-

CV, 2011 WL 3250598, at *7 (Tex. App.—Austin July 28, 2011, pet. denied) (mem. 

op.) (rejecting an argument that the enforcement of a forum-selection clause would 

subvert the public policy of litigating DTPA claims in Texas).

CONCLUSION

The trial court’s order granting the motion to dismiss is affirmed.

/s/ Tracy Christopher

Chief Justice

Panel consists of Chief Justice Christopher and Justices Wise and Hassan.