### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 23
- 00394
- CV

TBC - The Boring Company , Appellant

v. 304 Construction, LLC , Appellee

FROM THE 335TH DISTRICT COURT OF BASTROP COUNTY NO. 2214-335, THE HONORABLE REVA TOWSLEE
- CORBETT , JUDGE PRE S IDING

M E M O R A N D U M O P I N I O N

In this interloc utory appeal, TBC – The B oring Comp any (TBC) challenges t he trial court ’ s ord er denying its second motion to abate and compel ar bitration in th e suit of 304 Construction , LLC against TBC

. F or t he following reasons, we reverse the trial court ’ s order denying TBC’ s motion and remand t he case to the trial court.

B ACKGROUND On May 30, 20 22, TBC issued P urchase O rder 21840-1 (the “ Purchase O rder ” ) to 304 Construction to pro vi de certain construct i on m aterials and services related to the construction of a manufacturing building located in Bastrop County

. On that day, the parties exchanged emails, the Purchase Order was revised , and after it was re v ised , 304 Con struction confirmed by em ail that it h ad r ece ived it

. The Pur chase O rder is one page plus a few lines on a second page and states the materials and services to be supplied ; the ord er total of $1,084,954.00 ;2 the pa yment terms of “ 33% down, ” “ 33% after se lect fill pla ced , ” and “ 34% when comple t e ” ; and the email a ddress for invoices. On the second page , the P urchase O rder st ates:

Term s & Con ditions : Per Boring Com pany stan dard terms

- https://www.boring company.com/ter ms - a n d

- conditions.

On June 1 , 2022, 304 Co nstruction invoi ced TBC for “ 33% DO W N ” r e ferenc ing the Purchase Order , and TBC paid the invoiced amount a few days later

. Pur sua n t to the terms of the Purchase Order, 304 Con s truction provid ed materials and services , and TBC pa id invoiced amounts. A few months after the Pu rcha se Order wa s iss ued , a dispute arose between the parties as to the scope of the services that 304 Construction had agreed to provide and the
amount s that TBC had agreed to pay. After TBC refus ed to pay d isputed amou nts , 3 04 Con s truction sued TBC . In its amended pet i tion , 3 04 Const ruc tion so ught damages f or breach of contract, fraud, and q uantum meruit related to TBC ’ s alleged fail ure to pay for construction services that 304 Cons truction had provided

. 304 Construct ion alleged that i t

“ entere d into an agreement w ith [TBC] t o provide certain c onstr uction materials a nd services

re lated to the construction of a commercial manufacturing st ructure , ” that “ substan tial inaccur acies in the geotechnical reports pr eviously pro vided to [i t] ” “ created the necessity of a signi fic a nt ch an ge and increase in the s cope of con struction services , ” that TBC agreed to the changes and to “ fairly ” comp ensate 304 Construction for the expanded scope of services , and that TBC ha d ref used to pa y the “ increased amount due as a result [of] the ch a nge in scope of construction services

. ” 304 Cons truction attached to its peti tion a Septem ber 2022 st atement sh owing alleged amounts owed under four invoi ces to TBC

.3 TBC answered , filed a motion to abat e and c ompel arb itration , and the n a second

mo tion t o abate and compel arbitration. In the second motion to abate and compel ar bitration, TBC rel ied on the “ terms and con ditions incorp o r a ted into the agre ement between [the parties]

a nd the Federal Arbitr a tion Act

. ” TBC supported its motion with dec l arati o ns from its Chief Financial Officer (CFO) and i t s D irector of Legal Affairs and attachments incl uding the P urchase
O rder , the email exchange bet ween 304 Construction and TBC in which 304 Cons truction

c onf ir

m ed that it had received the Purc hase Order a s re v ised on May 30, 1 invoi ces from
304 Construction ref e rencing the Purchase Order , 2 and a copy of TBC ’ s “ Terms and
C on d i tions , ” which contain the follow ing arbitration prov ision:
(a) All disputes and controv ersies arising out of this Contract includ ing t he e x istence, construction, validi ty, interpretat ion, performance, nonper f ormance, enf orcement or breach of any provision, shall be sett led by mediat ion and, if necessary , arbitration in accordance with the Co mmercial Arbitration Rules of the American Arbi trat i on Assoc iat ion ( “AAA ”)

. The parties agree to submit any dispute or controversy to binding arbitration before one (l) impartial arbitrator selected by AAA with costs to be borne equally by the parties. The federal rules of civil procedure shall appl y, t o include depositions, with respect to the arbitration. Any arbitration hearings shall take place in the Austin, Texas metropolitan area. T he findings of the arbitrators shall be final and binding upon

1 The C FO declared that the cop y of the email was true and correct :

5

. As de monstrated by the true and correct copy of the email attached as Exhibit A

- 3 to the Mo ti on, [3 04 Cons tr uction] ’s pr incipal A dam Me uth ackn owledge d re ceipt of the Purchase Order on M ay 30 , 2022. On June 1, 2022, [304 Constr uction] provided TBC with its f irst invoi ce , Invoice No. 1078

- 21

- 28, which referenced the Purchase Order.

2 The CFO also declar ed t hat the attached invoices were t rue a nd correct copies a nd t hat

“ each of the invoi ces s ubmitted to TBC refe re nced the Purchase O rder

. ” Although each of t he inv oices referenced the project, t wo invoices in the amounts of $3,140 and $4,019.2 6 refe renced dif f erent pur chas e order s , and one invoi ce did not list a purchase order

.4 t he parties. A ny award of arbitration may inclu de a t torneys ’ fees and costs, including but not limited to expert witness fees, payable to the prevailing Party in the arbitration, as determined by the arbitrators.

The t erms and c onditions d efine “ Contract ” as “ the instru ment of contracting, such as ‘ Purchas e Order ’

. . . or other such type des ignation, including th ese Standa rd Terms and Con ditions, all

r eferenced documents, exhi bits and attachme nts , ” a nd also inc lude a provision outlin ing the procedures for making changes to the scope of the co ntract and sta t ing that the parti es ’ failure to agree to an adjust ment based on a change in scope is subject to the disputes provision , which is the parties ’ agreement to arbitrate

. In her declaration, t he Director of Le gal Affa irs stated the foll owing a bout the Purchase Order a n d TBC ’ s t erms and c onditions :
I am the Director of Legal Affa irs for The Boring Company ( “ TBC ” ), and in such position, have personal knowledge regarding the existence of Terms and Conditions that are incorp orated into TBC ’ s agreements. It is with in my pe r sonal knowledge that TBC had an agreement with Plaintiff 304 Construction, LLC ( “ Plaintiff ” ) for Plaintiff to provide mater ials and perform certain work for TBC under the terms of the specific Pur chase Orde r No. 21840

- 1 ( the “ Purchase Order ” ). A true and correct copy of the Purch ase Order is attached to the Second Motion as Exhibit A

- 1. The Purchase Order expressly incorpora ted TBC ’ s standard terms and c onditions, which were available online at h ttps://www .boringcompany.com/te rms - and

- conditions ( the “ Ter m s and Conditions ” ). A tr ue and correct copy of the Terms and Conditions that were accessible on the website on all dates r elevant to this dispute, inclu ding from May 30

– June 1, 2022, and which we re incorpo rated by the Purchase Order by reference, is atta c hed to the Second Motion as Exhibit A

- 2. It is within my spe cific personal knowledge as Director for Legal Affairs of TBC at all relevant times, and bas ed upon my review of contemporaneous compan y records, that these Terms and Conditions attached as Exhi b it A

- 2 are exactly as the y appeared on the https://www.boring company.com/terms

- and

- conditions webpage on May 30

– June 1 , 202 2.

The CFO declared he was TBC ’ s custodian of record s , made similar decla rations to the ones made by the Director of Legal A ffairs a b out the Purchase Order and TBC ’ s t erms and c o nd itions ,5 and also de clared : “ At no time did [304 Con s truction] ob j ect t o any of the Terms and Con ditions referenced in the Purchase Order ” and that TB C “ p ro mp tly paid ” 304 Construct ion ’ s invoi ced

amoun t for t h e initial payment of “ 33% ” as set forth in the Purchase Order.
304 Construction filed a respon se in opposition to TBC ’ s second motion to abate and comp el arbitrat ion , con tending that TBC had fa iled to establish that a valid, enforceable arbitra tion agre e ment exist ed and object ing to TBC ’ s evidence

. 3 30 4 Construction argued that TBC had failed “ to produce any admissible evidence conta ining a valid and enforceab le arbitratio n agreement ” and asser t ed the defense s of fraud ulent induce ment and fail u re of

con s ideration. 304 Constru ction atta ched TBC ’ s terms and conditions that were attached to TBC ’ s initial motion t o a bate and compel arbitration and contain the date and time

— “ 10 /13 /22,

3 304 Construc t ion objected to both versions of the terms and conditions

— the copy of TBC ’ s t erms and conditions that was attached to T BC ’ s initial motion to abate and compel arbitrati on and the copy of T BC ’ s t erms a nd c o nditions at tached to its second motion to ab ate an d comp el arbitration

— on the ground s th at they were not properly aut henticated or verified and to the declarations on the ground s that they were not competent and admissi b le evide nce
. For example, 304 Const ruction arg ues that the CFO an d the Director of Le g al Affairs are not “ web administrators ” and “ certainly neither [on e] actually pub lished any terms on [TBC ’ s] website ” such that they had the personal knowledge to authe nticate TBC ’ s t erms and c on ditio ns an d describe s the CFO ’ s d eclar ation attached to TBC ’ s second motion as containing “ numerous instances of contradictions a nd inc onsistencies that demonstrate its lack of credibility ” as to the ter ms and c onditions that w er e available on TBC ’ s website whe n the Purchase O rde r was issued and that the CFO “ admit s that a true and accurate copy of the terms and conditions [ is ] not available

. ”
In the declaration attached to the second motion to ab ate and to compel arbitrat ion, th e CFO declared that he “ made a m istak e in affirm ing ” the “ version ” of the t erms and c on d itions , “ which appeared on a screenshot from October 20, 2022, ” whic h were attached to TBC ’ s initial motion to abate and compel arbitra tion . He explained that T BC ’ s “ v en dor who hosts the TBC webs ite is un able to pro vide me with a historic snapshot of t he actual webpage ” during the rel evant time period but that the CFO “ [c ould] affirmatively state with out equivocation th at t he Te rms and Conditions attached as Ex hi b it A

- 2 are the exact Ter ms and Con diti o ns t hat were av ailable on the website referenced an d i n corporated into the Pu rchase Order at t he relevant time period from May 30

– June 1, 2022. ”6 11:2 3 AM ”

— a t t he top of each page and TBC ’ s web page address at th e bottom o f each page
. 304 Constru ction asserted that t h e Octob er 2022 version of TBC ’ s term s and conditions and the
t erms and c ondit ions 4 attached to TBC ’ s second motion we re inadmissible and that TBC ha d not provided admissib l e ev idence that demonstrate d that an arbitration agreement existed during the rele vant time

. TBC filed a reply to the response ; the t ria l court held a hearing on TBC ’ s second

m otion to ab ate and compel arbitration ; and following t he hearing, the tr ia l co urt signed the order denyin g the motio n
. The trial court , however, d id not r u le o n 30 4 Construction ’ s ob jections to TBC ’ s evidence when it denied the motion

. 5 This interlocutory appeal fo llowed. See Tex. Civ. Prac. & Rem. Code § § 51.0 1 6 (authorizing appeal of inter locutory order as would be permitt ed under FAA) , 171.021 ( requiring court to order parties to arbitration on ap plication of party showing agreement to arbitrate) , 171.098(a)(1) (authorizin g party to appeal order de nying application to compel arbitration under Sect ion 171 .021 )

. 6

4 The t erms a nd c ond itions , which are attached to TBC ’ s second motion to abat e and compel arbi tration , are un date d

.
5 The appellate r ecord does not include a repo r ter ’ s record from the hearing on TBC ’ s second motion to abate and c ompel arb itrati on , but the parties agree i n their b riefing that the trial court did not rule on 304 Constr uction ’ s objections during the hearing, an d the trial court ’ s order denying TBC ’ s m otion does not address 304 C onstruction ’ s objections

.
6 Neither p arty contends that th is appeal presents an issue involving a conflict b etween Texas a nd f eder al law about the existence or scop e of the parties ’ ag reement to arb itrate. See Forest Oil C or

p . v. McAllen , 268 S .W.3d 51, 56 n. 10 (Tex. 2008) (“Whether a case i s governed by the Federal Arbitration Act (FAA) or the TAA, many of the underlying substantive prin ciples are the same[.]”).7 AN A L YSIS In it s sole appe llate issue, TBC argues that the trial court erred in denying its

se cond motion to ab ate and compel arb itration.

Stand ard of Review and Applicable Law

“ We review a t rial court ’ s order denying a m otion to compel arbit rat ion for abuse of discretion. ” Henry v. Cash Biz, LP , 551 S.W.3 d 111, 115 (Tex. 2018) (citing In re Labatt Food Serv., L.P. , 279 S.W.3d 6 40, 642

– 43 (Tex. 2009) (or ig. proceeding) )

. “ W e defer to the tri al court ’ s fac tual determ inations if they are suppo rted by evidence but r eview its legal d eterminations de no vo. Id

. A trial court abu se s its discretion if it act s “ without reference to a ny guiding rules and principle s
. ” Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241

– 42 (Tex. 1985)

. Further “ [a] trial court has no discretion in det e rmining what the law is ” “ or how to apply the law

. ” U

- Haul Co. of Tex. v. Toro , No. 01

- 22

- 00883

- CV, 2023 Tex. App. LEXIS 8906, at * 18 (Tex. App.

— Houston [ 1st Dist .] Nov. 30, 2023, no pet.) (mem. op.) (citing Okora for

v. Uncle Sam & Assocs., Inc. , 295 S.W.3d 27, 38 (Tex. App.

— H ouston [ 1st D ist.] 2009, pet

. denied)).

“ W hen an order denying a motion to compel arb itration does not state the grounds for the denial, we must af firm the order if any o f the grounds assert ed in th e trial co u rt for denying the motion are meritorious. ” Id. (citing In the Estate of G uerrero , 465 S.W.3d 693, 701 (Tex. App.

— Houston [1 4th Dist.] 2 015, pe t

. denied ) ). And “ [w] here, as here, the t rial court makes no written findings of fact or con clusions of law in support of its ruli ng, all facts necessary to support the judgment and supported by the evidence are implied

. ” Constant

v. Gillespie , No. 05

- 20

- 00734

- CV, 2022 Te x. App. LEXIS 3415, at * 12 (Tex. App.

— Dallas8 May 18 , 2022, no pet.) ( mem. o p .) ( citing Redi

- M i x, LLC v. Martinez , No. 05

- 17

- 01347

- CV, 2018 Tex. App. LEXIS 5683, at * 4 (Tex. App.

— Dallas July 25, 2018, no pet.) (mem. op.) ) ; accord BMC Software Belgium, N.V. v. Marchand , 83 S .W.3d 7 89, 795 (Tex . 2002)

.

“ Whether parties have committ ed their di sputes t o arbitration is a gat eway matter for the court to decide and is ‘ controlled by state law governing “ the validity, revocability, and enfo rceability of contracts generally. ” ’ ” Bonsmar a N at. B eef Co. v. H art of Tex. Cattle Feeders,
L LC , 6 03 S.W .3d 385, 397 ( T ex. 2020) ( quot ing Jody James Farms, JV v . Altman Grp. , 547 S.W.3d 624, 63 1 & n.12 (Tex. 2018) ) ; see Constant , 2022 Tex. App. LEXIS 3415, at *14 ( “ A rbitration ag reements are creat ures of contract

. ” )

. “ A party seeking to compel ar bitr a tion

m ust first est a blish that a va lid arbitration a greement exists and that the claims are within the agreement ’ s scope. ” Bonsmara Nat. B eef Co

. , 603 S.W.3d at 3 9 7 (citing In re Ru biola , 334 S.W.3d 220, 22 4 (Tex . 2011) (orig. proceedi ng) ) ; see In re Week ley Ho mes, L. P. , 18 0 S.W.3d 127, 13 0 (Tex. 2005) (or ig. proceeding) ( e xplain ing that “ burden is on the moving p ar ty to show a valid agreement to arbitrate ” ( citing J.M. Davidson, Inc . v. Webster , 128 S .W.3d 223, 227 (Tex. 2003 )) )

. “ If the party seeki ng ar bitrat ion ca rries i t s initial burden, the burden then shifts to the party resisting arbitrat ion to present evidence on its defenses to the arbitration agreement. ” Murdock v. Trisun He althcare, LLC , N o. 03

- 10

- 00711

- CV, 2013 Tex. App. LEXIS 563 8, at * 7 (Tex . App.

— Austin May 9 , 2013, p e t. denied) ( mem. op. ) (ci ting J.M.
Da vi dson, Inc. , 128 S.W.3d at 227 )

.

“ Whether a valid and enforceable arbitration agreement exists between [the part ies] is a legal ques tion subject to de novo review. ” Id. at * 4

. “ A tr ial c ourt t hat refuses t o compel arbitration u nder a valid and enforceabl e arbitration agreement has clearly abused its discretion. ” In re Whataburger Rests. L LC , 645 S.W.3d 188, 194 (Tex. 2022) (quoting In re9 24R, Inc. , 324 S.W.3d 564, 566 (Tex. 2010 ) (orig. procee di ng) ) ; see I n re Fir st

Merit B ank, N. A. , 52 S.W.3d 749, 753

– 54 (Tex. 2001) (orig. proceeding) (stating that when trial court concludes that arbitration agreement encompasses claims and party opposing arbitr ation has failed to prove defenses, trial co urt “ h as no discret i on but to com pel arbitration ” )

.
Exist ence of Arbitration Agreement In this case, the p le ad ing s and e vidence established that a contract ex isted between TBC and 304 Construction based on the terms stated in the Purcha se Order

. 304 Con struct ion confirm ed i t s receipt o f the Pu r ch ase Order as revised on May 30 , in v oi ced
TB C on June 1 for “ 3 3% Down ” with r e ferenc e to the Pu rc hase Order , and subsequently invo i ced TBC based on the payment terms stated in the Purch ase Order

. On its face, the Purch a se O rder ident i fie s the ma t erials and services that 304 Construction agreed to supply , the total amount that TBC agreed to pay , and the a greed pa yment t erms , and expressly st ates:

“ Terms and Conditions : Per Boring Company standard terms

— https://www .borin g company.com/t e r ms - a n d

- cond itions

. ” The pa rties ’ dispute concerns whether
TBC estab lished that the refere nced terms and conditions as they existed o n its websi te during the relevant time contained a prov ision requiring the parties to arbitrate dispu tes

.

“ A motion to co m pel arbi tration is similar to a motion for partial summary judgment and subject to the same eviden tiar y standards. ” Murdoc k , 2013 Tex. App. LEXIS
563 8, at * 5 (citing In re Jebbia , 26 S.W.3d 753 , 757 (Tex. App.

— Ho uston [14th Dist.] 2000, orig. proceeding) ) ; see Te x. Civ. Pra c. & Rem. Code § 171.021 (b) (stating t hat “ court shall summarily deter mine ” existen ce of agreement to ar b itrat e if party oppos ing application denies existence ) ; Jack B. Anglin Co. v. Tipps , 84 2 S.W.2d 266, 269 (T ex. 19 92) (orig. proceed i ng)10 (exp lain ing that trial court may summarily decide whether to compel arbitration based on uncontroverted affidavits, ple adings, discovery, and stipulations )

. “ The party moving to com pel arbitration ‘ must prese nt complete summa r y proo f of his case in c h i ef ’ pro ving the existence of an arbitration agreement covering the claims at issue. ” Murdock , 2013 Tex. App. LEXIS 563 8,
at *6 (c iting Jebbia , 26 S.W.3d at 757 ) ; see Constant , 2 022 Tex. App. LEXIS 3415, at *14 ( “ It is axiomatic t hat a part y seeking to p r ove it s right to enforce a contra ctua l remedy of arbitration must submit competent, prima facie evidence of the arbitration agreement itself. ” ).

“ Under the summary judgment standard, copies of documents must be

au thenticated in ord er to c onstitute compete n t summar y jud gment evidence. ” Di mension Homes , Inc. v. Lewis , No. 14

- 20

- 00316

- CV , 2022 Tex. App. LEXIS 2017, at *6 (Tex. App.

— Ho uston [14 th Dist.] Mar. 29, 2022, no pet.) (mem. op.) (citing In the Estate of Guerrer o , 465 S.W.3d a t 703)

. “ To satisfy the a uthentication requirement , the proponent must produce evidence sufficient to support a finding that the item is wh at the proponent claims it is. ” Constant , 2022 Tex . App. LEXIS 3415, at *14

– 15 ( citing Tex. R. Evid. 901(a) )

. “ The testimony of a witness w i t h knowledge is one way t o prove authenticity. ” Id. at *15 (citing Kyäni, Inc. v. HD Walz II Enters., Inc. , No. 0 5

- 17

- 00486

- CV, 2018 Tex. A pp. L EXIS 5610, at * 12 (T ex. App.

— Dallas July 24, 2018, no pet.) (mem. op.) ) ; see Tex. R. E vid. 901(b)(1)

. Thus, “ [ a] properly sworn affidav it stating that the attached documents are true and corre ct copies of the original authent icates the copies so they may b e considered as evid ence. ” Dimension Homes , 2022 Tex. App. LEXIS 2017, at *6 (citin g Republic Nat ’ l Leasing C orp. v. Schindler , 717 S. W.2d 606, 607 (Tex. 1986) (per c uriam) ). In the de claration s of TBC ’ s CF O and Director of Leg al Affairs , they sta t e that the y ha ve personal knowledge of the fa cts stated in the ir declaration s and that th e y a re t rue and11 correct ; t hat the Purchase Order an d the terms and con ditions attac hed as exhibit s a re true and correct copies ; that the Purchase Order “ expressly inc orporated TBC ’ s standard terms and conditions , which were available onl ine at https://www. b oringcompany.com/terms

- a n d

conditions ” ; and that t he terms and conditions that w ere attached a s an exhibit were “ exact ly as they a ppeared on the https://www.boringco mpany.com/terms

- and

- conditions webpage on May 30

– June 1 , 2022

. ” See Tex. R. Evid. 901( b )( 1 ); see also One Beaco n I n s. v. Crowley
Marine Se rv s
. , Inc. , 648 F. 3d 258, 26 7

– 6 8 (5th Cir. 2011) (explaining that under general contract principles, terms in se p arate doc ument that are incorporated by reference in contract are “ valid so long as it is clear that t he parties t o the agreement had knowled ge of and as sented to the incorporated terms ” and s t ating that court saw “ no reason to deviat e from t hese princip les where, as here, the terms to be incorporated are contained on a party ’ s we bsite ” )

. 7
The evid ence also establish e d 304 Cons tr uction ’ s confi rmation that it ha d

rec eived the Purchase Order as revised , its a cce ptance of the Pu rchase O rder ’ s terms by its submission of a n invoice referring to the Purchase Order , and its acceptance of payment on th e

7 304 Constructio n did not argue to t he trial court and does n o t a rgue on appeal that the Purc hase Order did not incor porate by re f erenc e TBC ’ s standard terms and con ditions that were availa ble on its we bsite but instead argues th at TBC fai led to establish what those term s and conditions were during the rele vant time

. See One Beac o n Ins. v. Crowley Marine Se rv s
. , Inc. , 648 F.3d 258, 26 8

– 69 (5th Cir. 2011) (addressing in corporation by reference of online terms into parties ’ agr eement ) ; s ee also U

- Haul Co. of Tex. v. To ro , No. 0 1

- 22

- 00 883

- CV, 2023 Tex. App. LEXIS 8906, at *22

– 24 (Tex

. App.

— Houston [ 1st Dist.] Nov. 30, 2023, no pet.) (mem. op.) ; Bob Montgomer y Chevrolet, Inc. v. Dent Zone Co s
. , 409 S.W.3d 18 1, 189 (Tex. App.

— Dallas 201 3, no pet.) (e xplaining that language used to refer t o incorporated document is “ not imp ortant as long as it ‘ plainly refe rs ’ to the incorporated document ” ( quoting Owen v. Hendricks , 433 S.W.2d 164, 167 (Te x. 1968) ) ) ; Dakota Foundry , Inc. v. Tromley Indus. Hol dings, Inc. , No. 1:11

- CV

- 01026, 2012 U.S. Dist. LEXIS 1540, at * 16 (D.S.D. Jan. 5, 2012) (order & op. ) ( “ With the widespread accessibility of the [i] nternet, companies are t urning to posting thei r ge nera l terms and conditions online and inco r porating them into a physical document by refe rence to the [i] nternet site where they are located

. ” )

.12 inv oice a few days lat er
. S e e One Beaco n Ins. , 648 F. 3d at 269 ( “ The chi ef consideration whe n determining the validity of contractual ter ms

— in contracts with or without a nexus to the internet

— is whether the party to be bound had reasonable noti ce of the ter ms at issue and wheth er t h e party mani fested assent to those terms. ” ) ; see al so Barnett v. Network Sol s
. , Inc. , 38 S.W.3d 200, 204 (Te x. App.

— Eastland 200 1, pet denied) (concluding that party with notice of and opportunity to review contra ct ter ms is bound to terms even if party h a s not re ad them and that “ same rule appli es to contracts which appear in an electronic format ” )

. TBC ’ s t e rms and

c on d itions , which were attached to TBC ’ s second motion and referenced in the declarations , contain an arbitration pr ovi sion that th e parties w ould arb itrate “ [a] ll disputes and controversies arising out of this Contract including the existence, construction, validity, in terpr etation,
pe rformance, nonperformance, enforcement or breach of a ny provision

. ” Acknowled g ing that the trial co urt did n o t rule on its objections to TBC ’ s evid ence, 8 304 Construction argues that the trial court “ could have d eemed that the ‘ evidence ’ subm itted by [ TBC] was not sufficient to meet its burden due to the inconsistencie s
. . . and its
l ack of credibil ity ” and tha t TBC “ offered no d irect evidence that [ an] arbitration clause ex ist ed on the internet as alleged. ” 304 Constr uction describes the CFO ’ s decl aration attached to TBC ’ s

8 304 Co n str uction ’ s objections were as to the form of TBC ’ s evide nce
. See U

- Haul Co. of Tex. , 2023 Tex. App. LEXIS 8906, at * 29

– 30 (stating that defect in form of authentication of do cument such as affidavi t attempting to authentic ate documents is d efect in form ) ; Smiley Dental

- Bear Creek, P.L. L.C. v. SMS Fin. LA, LLC , No. 01

- 18

- 0 0983

- CV, 20 20 Te x. App. L EXIS 6602, at * 10

– 11 (Tex. App.

— Houston [ 1st Di st.] Aug. 18, 2020, no pet.) (mem. op.) (listing type s of objections that are con si dered obje ctions a s to form). T hus , b ecause the trial court did not rule on those objections , t hey have been waived on appeal

. See U

- Haul Co. of Tex. , 2023 Tex. App. LEXIS 8906, at * 2 6

– 27 ( “ not [ ing ] that [ p arty ] waived t his objec t ion to [ exhibit attache d to motion to com pel arbitratio n ] by failing to obtain a ruli ng on it from the trial court ” and citing cases co nclu di ng that party w aive s objection to e viden ce to support motion to compel arbitration or motion for s ummary j udgment b y failing to obtain ruli ng on objection )

.13 second motion to abat e and compel arbitratio n as having “ nume rous instances of contradic t ions

a nd inconsistencies that d emonstrate its lack of credibility ” and contrast s it with the CFO ’ s declaration tha t was attached to TBC ’ s initial motion

. I n th at decla rat ion, the CFO referenced the Octo ber 2022 versio n of TBC ’ s terms and cond itions on it s websi te

. 304 Construction also challenges the copy of TBC ’ s terms and c on ditions attached to its second motion because it “ is not a true and accurate copy of any web pag e as [it ] lacks web navigation buttons on the top and the bottom of the d ocument ” and c ompar es that version to the October 2022 version that

“ contain s said navigation buttons. ” Based on the CFO ’ s declaration s as to the two versions of
t he terms and conditions , 304 Construction argues that the CF O “ perjured himse lf in the first declaration and is no long er credible ” and that TBC ’ s evidence was of a “ conflicting n ature. ” In his declaration attached to TB C ’ s second motion to abate and compel arbitration, however, the CF O explain s that he made a mist ake i n his prior declaration by affi r ming th a t TBC ’ s terms and condition s as they appeared on the website in October 2022

“ were the sam e terms and conditions that existed at the time the Purchase Order was s ubmitted ” ; that thei r “ ven dor who hosts the TBC w ebsite is unable to provide [him ] with a his t oric s hapshot of the actual w ebpage ” at the time the Pur cha se Order w as submitted ; and that based on his review of TBC ’ s business records and his “ ow n personal knowle dge ” of when cha nges were made to th e terms a nd con di tions , fo r which he and the Director for Le g al Affairs were “ so lely responsible, ” he “ can affirmatively st ate without equiv o cation that the Terms and Con ditions attached as [an exhibit] are the ex act Ter ms and Con ditions that were available on the website reference d a nd incorpora ted into the Purcha se Order at t he relevant tim e period from May 3 0

– June 1, 2022. ”14 304 Construction asserts facts and describes evidence that TBC could have
presen ted but did not to authenticate the co py of TBC ’ s t er ms and c on ditions attach ed to its

secon d motion , but 304 C onstruction did not pre sent evidence that would support its as serted facts or otherw ise present con trary evi dence

. 9 304 Construction also does not addr ess the declaration of the D irect or for Legal Aff a irs who m ade t he sam e declarations as the CF O di d abou t the copy of TBC ’ s terms and c on ditions that was attached t o TBC ’ s second motion. Even if 304 C o nstruction had n ot waived its objections to the d eclarations, it has not cited , and we have not found , auth ority that : (i) w ould preclude t he Director ’ s decla rations from authenticat ing the copy of TB C ’ s t erms and c onditions as a true and correct copy of th e version of the terms and

con d itions on its website when the Purchase Order was issued or (ii) would requ ire actual

s cree n shot s of the we bpage s at is s ue in order to authenticate a copy of the terms and conditions referenced in the Purchase Order

. See Tex. R. Evid. 901(b)(1) ( s t ati ng that evidence may be

au th enticat ed through testim ony of witness with knowled ge) ; U

- Haul Co. o f Tex. , 2023 Te x. App. LEXI S 8906, at *30 (explaining that in “ summary proceeding, ‘ [a] properly sworn affidavit stating that the atta ched docume nt s are t rue and correct copies o f the or iginal authenticates the copies s o they may be consid ered as .

. . evi dence ’ ” ( qu otin g In re Guer r ero , 4 65 S.W.3d at 704)). It follows that TBC ’ s un controverted eviden ce establish ed the existence of an arbit ration agreement as a matter of law

. See Tipps , 842 S.W.2 d at 269

– 70 (holding that motion to compel arb it ration may b e decided summa ril y w ithout eviden tiary hearing and that unco ntr overted

9 For exampl e , 304 Construction sta tes , “ It is a kno wn fact that the terms and con ditions have c h anged at least once during the relevant time pe riod ” and that the webpage administrator

“ cer tainly could h ave prov i ded a log of when change s were made and em ail tra il of t h e changes he/she was instructed to make

. ” The copy of the O cto ber 2022 version of TBC ’ s ter ms a nd conditions and the copy of the t erms an d c onditions t hat was attached to TBC ’ s second motio n includ e ide ntical arbitration p rovision s
.15 affidavit “ even of party ’ s agent ” mus t be accepted as true ) ; see also U

- Haul Co. of Tex. , 2023 Tex. App. LEXIS 8906, at *30 (explaining that “ party can satisfy its evi dentiary burden t o prove the exi stence of an arbitr ation agreement by submitting an authenticated copy of an agreement containing an arbitration clause ” )

. Scope of Agreement to Arbitrate To support its motion to compel arb itration, TBC a lso had to esta blish that
304 Co nstruction ’ s as serted claims w ere withi n the scop e of t he arbit ration agreement. See G.T. Leach Builders, LLC v. Sapphire V.P. , 458 S.W.3d 502, 524 (Tex. 2015) (citing Tex. Civ. Prac. & Rem. Code § 171.021(a))

.

“ To determine w heth er a c laim falls within the scope of a n arbit ration ag r ee ment, we look at the terms of the agreement and the factual allegations in the petition. ” Penn zoil Co.

v. Arnold Oil Co. , 30 S.W.3d 494, 498 (Tex. App.

— San Antonio 2000, orig. proceeding) (citing
Pru denti a l Sec. Inc. v. M arshall , 909 S. W.2d 896 , 900 (T e x. 1995) )

. “ Generally, if the facts alleged ‘ touch matters, ’ have a ‘ significant relationship ’ to, are ‘ inextricably enmeshed ’ with, or

are ‘ factually intertwined ’ with the contract that is subject t o the a r bitration agreem ent, the claim will be arbitrab l e. ” Id

. ( quoting Hou

- Scape, Inc. v. Lloyd , 945 S.W.2d 202, 205

– 06 (Tex. App.

— Houston [1st Dist.] 1997, orig. proceeding) ); see U

- Haul Co. of Tex. , 2023 Tex. App.
LEXIS 8906 , at * 31

– 32 (stating that in det e rmini ng whether c laim falls with in scop e of arbi t ra t ion agreement, focus is “ on the factual allegations in the plaintiff ’ s petitio n, rather than the legal c auses asserted , and the terms of the arbitration agreement ” ) ; see also Matter of Amberson , 54 F. 4th 240, 26 6 ( 5th Cir . 20 22) ( ex plain ing that under T exas law, to come wit hin scope of arbitration provision, party ’ s allegations need only be factually intertwined16 with arbitrable claims or otherwise touch upon subject matter of agreement co ntaining arbitrat ion pr ovision )

. 30 4 Cons truction a rgues that TBC “ has ac knowledge d that the payme nt dem anded [by 304 Construction] is ‘ outside ’ the [P ] urchase [O]rder and th us [ 304 Construction ’ s ] claims are not subject to the alleged arbitration clause. ” But, a t a minimu m, 304 Co nstr uc ti on ’s plead ed cla ims touch matte r s an d are factually intertwined with the terms of the parties ’ contract that is based on the Purchase Order. 304 Construction al leged that it had

“ fully performed ” its contr actual obligati ons and that TBC “ has failed to pe r form its contrac tual obligation s , ” and the parties ’ dispute concerns the scope of the ser vices and materials that
304 Construction agreed to prov id e under t he Purchase Order ’ s terms and the amount that TBC agreed to pay fo r those serv ices and materials . 3 04 Constru ction c ontends that i t provided an
expa nded s cop e of services and that TBC agreed to pay an amount t hat e xceeded t he total

amou nt stated in the Purchase Order. And TBC ’s evidence est ablished that t he terms of th e Purchase Order included TBC ’ s st a ndard terms and conditions , wh i ch included the parties ’ agreement to arb itr ate “ a ll disputes and controver si es arising out of this Contract ” and a provi sion addressing t he pro cedure for making changes to the general scop e of the contract.
T hus , we co nclu de that TBC ’ s evi de nce establis h ed that 304 Construction ’ s claims are within the
scop e of the arbitration a greement. 10 See U

- Haul Co. of Tex

. , 2023 Tex. App. LEXIS 8 9 06, at

10 TBC also argues th a t th e issue of whether 304 Construction ’ s claims are within the scop e of the arbitration agreement is for the arbitrat or to decide because the parties agreed to arb itrate “ in a ccordance with the Com m er cial Arbitration Rules of the American A rbitration Ass o ciation ( “ AAA ” )

. ” Se e Archer & White Sales, Inc. v. Henry Schein, Inc. , 935 F. 3d 274, 279 (5th Cir. 2019) (explaining that agree ment to arb itrate that incorp orates AAA rules “ pr esents clea r and unm i sta kable evidence that the parties agre ed to arbitrate a r bitrability ” (quoting Petrofac , Inc. v. DynMcDermott Petroleum Operations Co. , 687 F. 3d 671, 675 (5 th Ci r. 2012)) )

.17 *31 , *35

– 36 (stating that whether “ scope of arbi tration agreement encompasses t he c laims in dispute is a quest ion o f law that we review de novo ” and that “ [t ]here is a presumption favoring arbitration and a policy to construe arbitration agreements broadly ” and collecting cases addressing broad scope of arbitration agreements ) ; se e a lso In re First Merit Ba nk , 52 S.W.3 d at
75 3 ( explaining that when det ermin ing whether claim falls with in scope of arbitration agreement, there is presumption in favor of a rbitration and that court s must resolve any doubts abo ut scope in fav or of arbitratio n)

. Be cause TBC ’ s ev idence establis h ed that 304 Construction ’ s disp uted claims are within the scope of a va lid agreement to arbitrate and 304 C onstruction did not present contr ary evidence , the burden shifted to 304 Const ruct ion to present evidence that su ppor ted an affi rmati ve def ense to a r bitration. See Yong Yu v. Chao

- Qun Lu , No. 03

- 22

- 00036

- CV,
2022 Tex. App . LEXI S 3903, at *5 (Tex. App.

— Austin June 8, 2022, pet . fil ed ) (mem. op.) (explaining that if party proves that disp uted claims are within scope o f va lid agreement to arbitr ate, bur d en shifts to opposing party to set up affirmative defense to arbitration (citing
Bonsmara Nat. Beef Co ., 603 S.W.3 d at 3 97

– 98 ) ) ; see a ls o In re FirstMerit Bank , 52 S.W .3d at 756 (stat ing tha t by s uing based on contract w ith arb itration ad den dum , part ies s ubjected themselves to contr act terms including arbitration pro vision and that unless parties could prove defense to arbitration, FAA required a rb itration)

.

Because we have con cluded that TBC ’ s evidence esta blished that 304 Cons truction ’ s claims are within the scope of the p ar tie s ’ agreement to arb itrate, we do not re ach this alternative ar gument. See Tex. R. App. P. 47.1.18 Defen ses to A rb itration
304 C onstruction argues that it sub mitt ed the d efenses o f f raudulent induce m en t and failure of consideration , “ along with the evi d ence i n support thereof

. ” To defeat arbitration, it was 304 Construction ’ s burden to present evid ence to establish one o f its plea ded defense s a n d
t o prove that the defense “ speci fi cally re lates ” to t h e agreement to arbit rate , “ not the contract as a

w ho le. ” In re FirstMerit Bank , 52 S.W .3d at 756

.
Fraudulent Inducement
F r audulent inducement is established when the elemen t s of fra ud are established

“ as they re late to an agreement between the parties

. ” In re Ready One Indus. , 400 S.W.3d 164,
169 (Tex. App.

— El Paso 2013 , or ig . proceedin g) ( citing Haase v. Gla zner , 62 S.W.3d 795, 798

– 99 (Tex. 2001) ); see Aquaplex, Inc. v. Ran cho La V alencia, Inc. , 297 S.W.3d 768, 774 (Tex.
2009 ) (sta ting elements of fraud ( citing In re FirstMerit Bank , 52 S.W .3d at 75 8 ) )

. As support for its defense of fraudulent inducement , 304 Construction relies on the CFO ’s de clarat ion that “TBC denies that it ow es [304 Construction] the addi tiona l payment that [ 304 Construction] has dem a nded, which is outside w hat was expressed in the Purchase Order whose terms were agreed and accepted by [304 Construction]

. ” 3 04 Constr uctio n desc ribes this declaration as a “ f ra

udulent represen tation [ that ] shoul d not force [it] to comply with terms of a n agreement that [ T B C ] has not complied w ith ” and that the second moti on

“ should be denied as a result of [TBC] ’ s fraud and in order to pr event [TBC] from continuing to benefit fr om the ir underlying fraud. ” B ut “ [ t] he mere failur e to perform a contract i s not

e vidence of fraud. ” Form os a Plas tics Corp. USA v. Presidio Eng ’ rs & C ontractors , Inc. , 960 S.W. 2d 41, 48 (Tex. 1998). Further, it was 304 Construction ’ s burden to presen t evidence19 that TB C “ made represe ntati ons with the inte nt to deceive and with n o intention of performing as represented , ” and the evid ence must be relevant to TBC ’ s intent at the time the representation was made. Id. The CFO ’ s declaration after 304 Cons tr uction ’ s suit was filed is not e viden ce of

a repre sentation that was made when the alleged chang e in scope occurred . Thus , we conclude that 304 Construction did not meet its burden to avoid arb itra tion based on the defense of fraudulent inducement

. See Y ong Yu , 2022 Tex. App . LEXI S 390 3, at *5

.
Failu re of Consideration The “ failur e of consideration ‘ occurs when, beca use of some supervening cause arising after the contract is formed, the prom ised perfo rmance fails

. ’ ” Id. at *12 (q uoting Doskocil Mfg. C o. v. Sang Nguyen , No. 02

- 16

- 003 82

- CV , 2017 Tex. App. LEXIS 5961 , at * 15 (Tex. Ap p
. — Fort Worth June 29, 2017, no pet.) (mem. op.) ) ; see id. at * 11

– 12 ( explaining difference between lack of consideration and failure of consideration ) ; see also Burges

v. Mos ley , 304 S.W.3d 623, 628 (Tex. A pp.

— T yler 2010, n o pet.) (discussing affirm ative d efense of failure of consideration)

. 304 Construction argues that there w a s a fa ilure of consideration because TBC

“ agreed to pay for the expanded scop e of construction servi c es ” and that th is “ failure of

c onsid er at ion disc harges the duty of [304 Construc t ion] to submit to arbitration as [it] is not a

va lid arbitration agreement u pon the failure of suc h consideration. ” But partial fail ure to make payment s under a contract doe s not constitute failure of cons idera tion. Se e C arter

v. PeopleAnswers, Inc. , 31 2 S.W.3d 308, 312 (Tex. App.

— Dallas 2010, no pet.) ( “ A partial failure of consideration does not invalidate the contract but entitles the injured party to a suit for damages. ” ). And 304 Construction did not pres ent evide nce to support its f actual assert io n t hat20 TBC agreed to p ay more than the st ated amount in the Purchase Order a nd has not explained how an agreement to change the scop e of th e services after the Purchase Order was accepted would be a “ superve ning cause arisin g after the contract is formed ” o r wh y such an ag reement would not be subject to the parties ’ a gree ment to arbitrate such a dispute

. See Penn zoil Co. , 30 S.W.3d at 498 (stating that if “ facts alleged ” to su pport claim are factually intert wined with
contra ct that is subject t o ar bitratio n agreement, claim will be arbitrable )

. Thus, we conclude that 304 Construction did not meet its burden to avoid arb itra tion based on its defense of failure of consideration

. See Yong Yu , 2022 Tex. App . LE XI S 3 903, at *5

.
C ONCL USION
B ecause TBC e stablis h e d a s a matter of law that a valid arbitration agreement existed betwe en the parties and that 304 Const ructio n ’ s claims fel l within its sc ope and
304 Construction did not pr esent evidence to contest TBC ’ s pro of or meet it s burden to av oid arbitration based on its pleaded defen se s , we conclude t hat the trial court abused its discretion in denyin g TBC ’ s second motion to abate and compel arbitration

. See In re Whataburger Rests

. L LC , 645 S.W.3d at 194 ; Murdoc k , 20 13 Tex. App . LEXIS 5638, at *7. Thus, we sust a in TBC ’ s issue , re verse t he trial court ’ s order denying TBC ’ s second motion to a bate and co mpel

a rbitration , and remand the case to the trial court

.

_____________________ _____________________ Rosa Lopez Theofanis , Justice Before Chief Justic e Byr ne, Justices Kelly and Theofanis
Revers e d and Remanded Filed: May 17, 2024