Ninth Court enforces forum selection clause in case over sale of diabetic alert dog

By David Yates | Jun 28, 2013

In January, a Beaumont judge denied a Virginia-based company’s motion to dismiss for lack of jurisdiction, even though the plaintiffs in the case, Ryan and Tara McLeod, signed a contract with a forum clause when they purchased a diabetic alert dog from Guardian Angel Service Dogs.

On June 27 the Ninth Court of Appeals reversed the judge’s ruling, finding that he abused his discretion. 

The McLeods filed suit against Guardian Angel on July 2, 2012, in Jefferson County District Court, seeking declaratory judgment stating that they should not have to pay the company more than $20,000 for the sale of a service puppy.

On Oct. 10 Guardian Angel filed an amended motion to dismiss, stating that McLeods agreed to litigate any disputes in Virginia, the company’s residence, when they signed the contract, court record show.

Judge Bob Wortham, 58th District Court, denied the motion on Jan. 16.

“The court finds that plaintiffs claim does not arise out of the agreement and thus is not within the scope of the agreement’s forum selection clause,” the order states.

Court records show that on May 10 Guardian Angel filed a petition for writ of mandamus, seeking to have the judge’s order vacated.

“The dispute falls within the scope of the forum-selection clause of the parties’ contract,” states the Ninth Court’s per curiam opinion.

“The trial court abused its discretion when it denied Service Dogs’ motion to dismiss on that ground. We are confident that the trial court will vacate its order of January 16, 2013, and will re-consider the motion to dismiss and the response. The writ of mandamus will issue only if the trial court fails to act in accordance with this opinion within a reasonable time.”

Court records further show that on Dec. 11 the McLeods filed a motion to invoke crime-fraud exception, seeking the release of privileged attorney-client information, suspecting that the defendant may have committed fraud and hired an attorney to help them to commit the crime.

The defendant responded to the motion to invoke the crime-fraud exception on Dec. 12, arguing the plaintiffs have not pleaded any cause of action for fraud.

According to the lawsuit, the McLeods’ son was born with Type 1 diabetes on Oct. 15, 2008. When it became clear their son’s difficult lifestyle would require special attention, the couple turned to Guardian Angel.

Diabetic service dogs are specifically trained to react to the chemical change produced by blood sugar highs and lows.

Guardian Angle offered to sell a diabetic alert dog for $20,000. In order to raise the money, the McLeods engaged in several fundraises, earning enough money for the dog and some extra cash for a separate account for the boy’s medical needs.

Three days after delivering the puppy, Guardian Angel demanded the couple sign a contract or be forced to return the puppy, which the couple did opt to sign.

“Defendant then demanded that all of the funds donated by the boy’s friends and family and community, including the amounts over and above the $20,000 that has already been paid to defendant, be given to defendant,” the suit states.

“Defendant has threatened litigation unless the McLeod family gives … all of the money in the separate account that is designated for the boy’s continuing medical needs.”

The couple was asking the court to declare that couple is not required to pay more than $20,000.

Guardian Angel is represented by attorney Patricia Chamblin of the Beaumont law firm MehaffyWeber.

The McLeods are represented by Mathew Morgan, attorney for the Beaumont law firm Reaud, Morgan & Quinn.

Trial case No. A192-645

Appeals case No. 09-13-00226-CV

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