appellants their corporation near mexico seating for two collectively their owners were here today on a very simple legal issue which is whether texas law of incorporation by reference requires a signature on the contract memorandum purporting to incorporate terms from another document with think it's actually a well settled law under a well settled proposition under texas law unfortunately the only hendricks opinion which is the texas supreme court opinion that estab rule established it using language that addressed both statute of fraud and incorporation by reference issues and in the process the district court was led astray for context this dispute arises connection with the commercial relationship between the parties there on the one hand and international corrugated packing supplies for two is into core pack the lesson from two thousand and seven to two thousand and fourteen during which time your purchase fourteen point seven million dollars from the decor pack and now that the dispute is down to about one hundred sixty thousand dollars worth of those sales into core pack is claiming that the language used in at least twenty purchase orders exchanged issued by the two hundred core pick over the course of that seven year relationship was not sufficient to incorporate these terms and conditions which were elsewhere available because it lacked a signature  simply put the texas law of incorporation by reference as announced in the only hundred case is designed to prevent the falsified cation or false testimony concerning additional terms that the court must consider as part of the agreement and the safeguard against that falsification was not a signature on the incorporating document but rather clear language in the contract memorandum identifying the external document in adopting  know i think the language of the language of the only hendrix opinion that isn't quoted in its progeny makes this very clear for the courts recollection only hendricks involved a real  estate sale and letters exchanged between the broker and the owner of the property addressing attaining a sale the property in the commission be paid for it i think your point about clarity of terms does seem to make sense as a is the crux holding but what would help me would be what's the best texas case where the court finds the contract enforceable but there is no signature and yet it still upholds utilization of doctrine of the corporation by reference texas case that's this case not involving a signature well one that says because it's in forcible but it doesn't have a signature we will still apply the doctrine of incorporation by reference i'm not aware of a texas case that addresses that the power that makes to this was not done by purchase order not done by e mail and so many of these transactions are not subject to any terms that you have published on that's correct  that would seem to separate an agreement to arbitrate from other terms of a contract in the requirement for it's clear unequivocal specificity two documents the question is did they have a meeting of minds that they would actually be one and he's saying that under texas law there can't be that meeting of minds absent a signature in the charged document that's right because he's only get to obviously you know lurking here in the early guesses with something as consequential as your brief makes it seem all commercial transactions why wouldn't we want to certify that texas correct its own is direction well two reasons  stringency in texas law you have to assess the impact of that additional stringency literally billions of dollars of contracts already in existence in texas law that will not therefore build damages arbitration that argues for how exceptionally important resolution of this is that seems to be a powerful argument pass texas owen is nine hundred sixty eight just out of curiosity look when was the first electronic realize my time is up if i could just quote from you and referring to the two letters involved in the news the two letters obviously relate to the same subject matter but there is nothing in the letter signed by the responded that even remotely that they're enforceable contracts i didn't read that i got the precise course what's below where you're going with this what if what you're saying we don't have the legal issue presented to us no what i think what i am saying is that they have would have to show evidence that these purchase orders were given presented to my well it could as they're part of prove there could show you know the right arbitrator i'm really i'm very confused i thought it went back down in there were it was accepted argue window that they did for example they were responses from your ok but if we look at his opinion and decide that he assumed argue lando that there that i'm really no no whatever we will look at that but i can't because otherwise i think your threshold argument that you're making now requires yet another someone's got to ascertain what the contract we're discussing relates to and based on the assumption judge i would like to point there's a few cases in the in re provincial case decided by the lucas i think that's a microphone on charges no no that long thing and oh no electro because a microphone if you get too far away from are you going to lose your their position seems to be quite simple oh when is controlling texas supreme court law that the reference to a signature is either just descriptive or it only relates to enforceability because it pertains to set or front i think they have misread what it is and what they have left out i got the oed decision but the on page one sixty six of the opinion this is the whole this is the rule they cite the rule is uniformly held that an unsigned paper may be incorporated by reference in the paper signed by the person side be  by writing which he has not signed country to term statute but isn't that the statute of frauds yes but there's the statute of frauds and it doctor the corporation by reference or both involved in this case and they had to apply the dock for news corp by reference to apply the dot the statute for if you were writing the certification question to the supreme court what would you ask the supreme court to answer  question to the supreme court would be probably ought to stay there for us in this people can make up any document just saying this is part of the contract that says it's part of contract where it is a contract stop is it e mails is it what somebody told somebody is it purchase orders is it you know some i  mean and as to merchants in texas it's signatures are already waived yeah but that's i think that's a misreading of to point to one of the business and congress co if you read the provisions on page twenty five of the brief what that w because they sent it out there what it talks about is a confirmation of contracts so if i have already entered into a contract with you in my and i'm businessman a i can send you a memo saying yeah this is this is a confirmation that we've entered into screaming for you know x product at this price to be delivered you know it on these terms or whatever and then the other business has ten days it's not but it it presumes a contract in existence that gets back to your factual disagreement which may be valid but i'm not criticizing i just wasn't aware that we have a dispute as to whether factually there was an enforceable contract at all i thought this was back up to us with that isn't some guy in and i could be wrong judge i'm just reading the  read and you but neither of you have to agree with the certification question but if you can't if you're if you appropriately are reluctant to give me suggested language or certification question tell me just how you would write this in your favor how would you if it were a single set se in your favor what are you writing there was no it factually and i think i would write it just the way the judge wrote it in his request to sentence to questions that he wanted briefed after you remanded it and i don't have the exact wording but it it is worded very beacon because that involve mare time law but they're going to apply state law ok and now i mean i you can go in and say well they didn't rule that they can say that there was in the problem that case i guess that the terms but you know they and we have several courts is cite the rule that you have to have a signature and they just basically you know i think ignore that and we may have gone over this but i guess i'm probing you say they've got no cases i'm wondering what your case where texas courts looked at in enforceable contract that drew reference to a website which is ubiquitous and yet they said those terms are not part of the has any presidential authority at all in fact it's on page twenty five of their brief you know because originally the in the original pinion they said that there was they would not incorporate sections twelve and not the the purchase orders here were even received and if so are they enforceable put aside any doctor and corporation that's what you're as isis and you don't affirm what the judge has ruled like i think he he left that issue side because i think he that this issue the lack of the signature dispose of the case so we would like we'd like you to remand it remand with with the point that the arbitrator you keep saying he feels but i don't sense a lot of rigor in your argument that he's right you're telling us he's right well i believe he's completely right yes i mean he is right i mean i mean the case we have the cases that support our position ok i think they have not one case and i'm just making the point that he decided not to get in the thought is the way the law works is we tell us federal district judge to result fax we wouldn't certify to the texas supreme court and say let's give an advisory opinion if the party still haven't even agreed as to one hundred sixty thousand dollars if there even was a contract it may be a decide that the plaintiffs here suffered a lot there's been about four years in this case and they've they've had to form a new corporation they've suffered tremendously financially we of course disagree with the plaintiffs  appellant's position here it's just been a constant is where is the third time now to try to get what was owed to them rates down now to one hundred sixty thousand yeah and it's all about did you get the purchase orders or not you say you didn't they say we're going to let's just assume they did i don't see why my own view of why we reach an issue well i just think what the judge rule is he did that you're right he ruled that you don't need to go to the contract  recall and blanket purchase orders but if they're never sent to a client it's not like all the cases i've been seeing where you know businessman a sends a purchase order to businessman b didn't happen in this case when our clients didn't get paid for a percentage of these contracts they created their own invoicing and sent it to lier there never worked and i mean so i mean i have a problem with the whole concept that this is a purchase order in the normal sense i mean it's something that lear kept internally but and i think that's what the district court frustration was through this whole process has been asking clear can you tell us how the contracts are formed and i don't want to know some theoretical contract i want to know exactly how are these formed and as your opinion points out they can only bring up one one purchase order that accompanied an e mail that they had and they found this by the way after the case we decided and in that e mail it's got language in there that says that any e mails imply there is proves when it has this disclaimer language and so on but i do think the judge was just largely frustrated here by the failure of  of hardware and forcible i don't know if i would like i would i can't say it's called there because i've always understood assuming arguendo to mean that you're not you're not finding that to be the case but you're making that assumption so i think he just made that assumption so that he could rule rule on the signature requirement but i don't think he saw in that sense i don't consider air i think it's just it's just as an assumption he's making  know another problem here that's really troubling is i is it appears that all these contracts were divisible there was never one written contract that glued everything together for seven years or two thousand and seven to two thousand and fourteen you just any agreement over a period time nothing in writing and most of these cut cases we're reading there's some sort of written agreement between the parties as to where they're doing so i don't know how you do that but i think that we're going to have to apply this doctrine to everyone each and every one of the hundred ninety eight invoices because some of them are no longer at issue but reference to twenty two contracts he talks about that that doesn't apply because those purchase orders because they never they were they were never again i'm sorry i'm going back to fish no he made the argument that twenty of the remaining purchase orders there are twenty purchase orders remain that have not been fulfilled and that's what we're suing law to address first of all you're absolutely correct that the district court did assume away the contract formation issues in order to focus specifically on the legal issue of one of the requirements of the corporation by reference the specific language is nonetheless assuming argue endo that defendants have proven enforceable agreements through the course of dealing at the parties they still have failed to prove a valid agreement to arbitrate which is the language he used to introduce his discussion the incorporation by reference the reason the court should address this issue the legal issue and then remain for the district court to address the factual issue is that it is undisputed that every one of the  are in question reference earlier purchase order number there are definitely questions of fact relating to the contract formation process is it undisputed that everyone left also does incorporate the arbitration clause is that undisputed well i believe there's no dispute that there are twenty two purchase orders referenced in the invoices at issue twenty of them include the language incorporating the terms and conditions the two that don't involve about fifteen hundred dollars worth of then then you can conclude that there was not a contract formed as to those that includes an arbitration clause unless it applies some other rubric like course of dealing with things like that by placing it in the context of a seven year relationship i think there are just too many factual issues even as to those two for this court to address but the point i want to make is that if even one of the contracts it issue here was formed through through a delivery in response to a purchase order that incorporate the language then the district court has to address the incorporation then will be in the position to identify which to boyce's words which contracts were formed with the purchase order which were not formed by means of the purchase order that had been incorporated language and he'll know what part of the dispute must be arbitrat that is it that is the opposing counsel is saying here they were all by phone none of them were submitted any bets true we don't need to reach this issue but that's not true that is one of the disputed that has the district court ever said made a finding that