1 Notice of appeal was filed by counsel for Reuben Lowing and Orlin Norris, Jr., but

no brief was file d on beh alf of Orl in Norri s, Jr. NO. 07-03-0393-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A JANUARY 4, 2005

______________________________ REUBEN LOWING AND ORLIN NORRIS, JR., APPEL LANTS V. DARYL WILLIAMS, APPELLEE

_________________________________ FROM THE 72 ND DISTRICT COURT OF LUBBOCK COUNTY; NO. 2003- 521,472; HONORAB LE J. BLA IR CHERR Y, JR., JU DGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORAND UM OPINION Bythis restricted appeal, appellant Reuben Lowing challenges a default judgment that appelle e Daryl W illiamsrecover $ 14,000 fr om him an d Orlin N orris, Jr. 1 Presenting two2

issues, Lowing contends (1) he is entitled to a restricted appeal and (2) the trial court erred in granting a judgment in favor of Wil liams beca use the contract contained a forum selectio n clauseplacing jurisdic tion of th e action in the s tate of New York. W e affirm.
On October 11, 2002, Williams, a Texas resident and boxer, entered into a written contract entitled Boxer–Manager Agreement with Norris, a Tex as resident, and Lowing, a California resident. Among other things, the contract provided that Williams would be paid a monthly stipend of $2,800 and further provided:
This A greem ent shall be governed by and construed wi th the laws of the State of New York, without giving ef fect to the principals of conflict of laws. ANYLITIGATIO N BASED HEREON, OR ARISI NG OUT OF, UNDER, OR IN CONNECTION WIT H THIS AGREEMENT OR ANY OTHER AGREEMENT CONTEMPLATED HEREBY, SHALL BE BROUGHT AN D MAINTAINED EXCLUSIVELY IN THE STATE AND FEDERAL COURTS IN THE STA

TE OF NE W YORK. Contending tha t Lowing and Norris failed to pay the ag reed monthly stipend, Williams filed suit on March 27, 2002. Lowing was served by certified mail sent March 31, 2003, and received on April 15, 2003. Norris was personally served on May 6, 2003, and citation was returned and filed with the clerk on May 7, 2003. Lowing and Norris did not
answer and after hearing evidence on May 23, 2003 , the tria l court signed a judgment on June 2, 2 003, that

William s recover

$14,000 against

them.2 See Tex. R. App. P. 30, formerly Tex. R. App. P . 45. 3 Byhis firs t issue, L owing co nte nds that he i s entitle d to a res tricted a ppeal. W e agree. The purpose of a restricted appeal, 2 i s to prot ect a part y who di d not par

ticipate during trial and did not discover that judgment had been rendered against him un til after the judgment was sign ed. Jack son v. Bi ote ct ronics, In c., 937 S .W.2d 38, 42 (Tex. App.-- Houston [14th Di st.] 1996, no writ). A direct attack on the judgment by writ of error must (1) be brought within six months after the judgment was signed, (2) by

a party to

the suit , (3) who did not parti cipate i n the actu al trial , a nd (4) t he error complained of must be “apparent from the face of the record.” Tex. Civ. Prac. & Rem. Code Ann. § 51.013 (Vernon 1986); Tex. R. App. P. 26.1(c) and 30; General El ectric v. Falcon Ridge Apts., 811 S.W.2d 942, 943 (Tex. 1991). Lowing’s first issue i s sustained. Byhis second issue, focusing on the forum selection clause, Lowing contends that the trial court erre d in rend ering jud gment. Wedisagre e. Standard of Review
A trial court’s decision whether a forum selection clau se is v a lid and/or should be enforced is reviewed for a n abuse of discreti on. My Café CC, Ltd. v. Lunchstop, Inc., 107 S.W.3d 860, 864 (Tex.App.–Dallas 2003, no pe t.); Barnett v. Network Solutio ns, Inc., 38 S.W.3d 200, 203 (Tex. App.–Eas tland 20 01, pet. d enied). An abuseof discre tion occu rs onlyif the trial court acts wi thout refe rence to a ny guidi ng rulesor princ iples, i.e. , if its4

decision is arbit rary and u nreasona ble. Ci tyof San Benito v. Rio Grande Valley Ga s Co., 109 S.W.3d 750, 757 (Tex. 2003); Russell Stover Candies, Inc. v. Elmore, 58 S.W.3d 154, 157 (Tex.App.–Amarillo 2001, pet. denied). Because this is a restricted ap peal, any error in not enfo rcing theforum sel ection cl ause must b e appare nt from theface of the re cord t o support the reversal of the judgment. Gold v. Gold, 111 S.W.3d 799, 803 (Tex.App.–Dallas 2003), rev’d on other grounds , 145 S.W.3d 212 (Tex. 2004) (citing Brown v. Brooks hires Gro cery Store , 10 S.W.3 d 351 (Tex.App.–D allas 19 99, pet. d enied).
Forum selecti on claus es will be enfor ced in T exas if (1) the pa rti es have contractuallyconsented to submit to the exclusive jurisdiction of another state and (2) the other state recognizes the vali dity of su ch provis ions. See My CaféCCC , Ltd. , 107 S.W.3d at864. In support of hi s contention that New York recognizes forum selection cla uses, Lowing suggests that this factor is satisfied be cau se the contract was prepared by New York counsel who were familiar with New York law. Howev er, he doe s not make any citation to the record where the author of the contract was identified. Moreover, Lowing’s argumentis unsup ported by citation of any l egal aut hority de monstrati ng that N ew York recognizes the validity of the forum selection cla u se, parti cularly where ne ither par ty resides or does business in New York and the amount in controversy is less than $20,000. As an appellate court we are not required to conduct research to find authority supporting
an essentia l elemen t of Lowi ng’s arg ument. In Re Moody, 93 S.W.3d 928, 929(Tex.Ap p.-- Amarillo 2003, no pet.). Issue two is overruled.5

Accordin gly, the judgment of the tria l court i s affirmed

. Don H. Reavis Justice Johnson, C.J., concurring.6 NO. 07-03-0393-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A JANUARY 4, 2005

______________________________ REUBEN LOWING AND ORLIN NORRIS, JR., APPEL LANTS V. DARYL WILLIAMS, APPELLEE

_________________________________ FROM THE 72 ND DISTRICT COURT OF LUBBOCK COUNTY; NO. 2003- 521,472; HONORAB LE J. BLA IR CHERR Y, JR., JU DGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
CONCURR ING OPINIO N Appellant

Lowing’s s econd issue urges that the forum selection clause at i ssue deprived the trial court of j urisdict i on. Enfo rcement of forum-sel ection cl auses do not, however, deprive Texas courts of jurisdict ion. See General Resources Org., Inc. v.7

Deadman , 907 S.W.2 d 22, 27- 8 (Tex.App.–San Antonio 1995, wr it denie d). See , also , The Br emen v. Zap ata Off-Shore Co. , 407 U.S. 1, 12-13, 92 S.Ct. 1907, 1914. Thus, even though Williams did not plead or prove the un reasonableness, unjustness, or invalidity of the clause, as was his burden if he contested the clause, see In re Automated Collection Technol ogies., Inc ., _ S.W.3d _, _ (Tex . 2004); In re AIU Ins . Co., _ S.W.3d _, _ (Tex

. 2004) (Texas courts mus t specifi cally en force foru m-selecti on claus es unles s th e pa rty opposing enforcementclearly shows that enforcement would be unreasonabl e and unju st,
or thatthe clau se is in valid fo r some rea son such as fraud or overrea ching), Lowing’s issue must be overruled. See Texas Nat’l Bank v. Karnes , 717 S.W. 2d 901, 9 03 (Tex. 1986).
I concur i n the resu lt reache d by the m ajority.

Phil Johnson Chief Justice