Opinion issued January 23 , 2024

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 22
- 00052
- CV

—————————

— — AGGREKO, LLC , Appella nt

V. BRONXCARE HE A L TH SYSTEM, FORMERLY KNOWN AS THE BRONX
- LEBANON HOSPITAL CENTER , Appell e e
On App e al from the 129th District Court

Harris County, Texas Trial Court Ca se No. 2020
- 56916

MEMORANDUM OPIN I ON
An employee of a ppellant, Aggreko , LLC , was fatally injur e d o n the premises of appellee, B ronxcare Health Syste m , formerly known as The Bronx

Lebano n Hospital Center ( BLH )

. Because of worker ’ s compensation laws, t he d e cedent ’ s h eirs and estate could not file suit against Aggreko. Therefore, they2

sued BLH in New Y ork state court

. BL H in turn filed third

- party claims for

common - law indemnity against Agg r eko

. In the N e w Yo rk state suit , Aggreko moved to dismiss and enforce provisions contained i n its Terms and Condit ions , pr o viding a forum

- selection clause requiring litigation in Harris County and barring in demnification

. The N ew Yo rk court denied the mot i on to dismiss and refused to enforce the foru m - selec tion provision . It further granted summary judgment in favor of BLH , c o ncluding that Aggreko failed to show an e n fo rceable
contr act including the Terms and Conditions and determining that BLH was entitle d to co mmon - law indemnity

. Aggreko ultimately settled with the decedent’s family. After the case was res olved in New York , Aggreko filed th e insta nt suit in
Texas c o urt seeking i ndemnification under its purported contract with BL H for the
amount Ag greko pa i d to se ttle the New York la wsuit

. BLH filed a special
appearan ce asserting that (1) Aggreko cannot establish that BLH had minimum
contac ts with Texas ; (2) there wa s no agreement between the part ies supporting Ag greko ’ s forum

- selection ar gument, and (3) ev e n if such an agreement existed, Aggreko waived it by litigatin g the case in New York. The trial court gran te d
BLH ’ s a spe c ial appearance and dismiss ed for want o f p ersonal jurisdictio n. Aggreko now chall enges the trial court ’ s order granting B LH ’ s specia l
appearance in th ree issues: ( 1 ) BLH ’ s special appearan ce must be denied because it3

consented to the Texas court’s jurisd i ction th rough a forum

- selection claus e ; ( 2 ) Aggreko has not waived the forum

- selection clause ; and ( 3 ) t he trial court abused its dis c retion by not s ustaining Aggreko ’ s objection to BLH ’ s special

appearance verification and by refusing to rule on the obje c tion.
We co nclude that Aggreko has f aile d to demonstrate that a val id forum

selection clause a pplies, and, thus, w e affirm. Backgro u nd I n May 2012, BLH , a New York limited liability no t

- for

- profit corpor ation ,

re nted a chiller from Ag greko , a D el aware c o r poration whose pri ncipal place of bu sine s s is in Louisiana

. When the rental term was complete, Aggreko removed the chiller from BLH ’ s premises with the assistance of a transportation company , Napoli T ransportation, Inc., d/b/a C &L Towing Services. T he ch iller was lifted out by a hoisting chain t hat subsequently broke kill ing Aggreko employee Tristan Mananghaya. Mananghaya ’ s family su ed BLH and Napoli in N e w York state court, and BLH filed th ird

- party claims against Aggreko. Ag greko ultimately settled the New Y or

k claims. Aggrek o then filed this s uit , seeking contractual
in demnification from BLH. BLH filed a special appear ance, which the trial court granted, dismissing Aggreko ’ s suit.4

A. The Chiller
- Rental Transaction and Proposed Terms and Conditions At the t ime BL H rented the chill er from Aggreko , K uriakose Fred Fernande z

was BLH ’ s Senior Director of Engineering , and Hiram Torre s was BLH ’ s Assistant Vice President

. Aggreko pr ovided a Proposal containing pricing and other terms for leasing BLH the chill er ( “ Pr oposal ” ) . In addition to setting out the specifications for the chiller , providing the monthly fee, and e numerating whi ch services wou l d be included and which would cost extra, the Proposal contained some terms and conditions such as providing that “ [a]ll monthly pricin g [ was ] based on a 28

- day billing cycle. ” The “ T er ms and C onditions ” section of the Proposal also provi ded: All services provided by Aggreko are subject to “ Aggreko North America Rental Agreement Terms & Conditions

. ” This document is provided online at: http://www.aggreko.com/NorthAmerica/ usefulJinks/terms_of_business.aspx and are incorporated herein by re ference. Alternat i vely, a copy will be provided upon request. Customer accepts and acknowledges receipt thereof by these methods. Aggreko w ill accept no alternative terms and conditions. Th e referenced T erms and C onditions contained, amon g other provisions, a forum

- select io n clause stipulating litigation in Harris County, Texas. Th e online
T erms and C onditions also contained a clause r e q uirin g that B LH indemnify a nd hold Aggreko harmless for injury to th ird parties arising from the handli ng of the equipment

. Specifically, th ey stated : 3 1. APPLICABILITY OF TERMS & CONDITIONS: The terms and conditions hereof shall be deemed ac ce p ted and b inding upon Lessee5

upon tra nsfer of custody of the Equipment to the carrier for delivery to Les s ee’s rec eiving point, regardless of whether t he Rental A g reement is signed by Lessee. To the extent these terms and conditions or Lessor’s proposal ar e in conf l ict wi th any terms and cond itions provided by Lessee, the terms and conditions hereof shall dic tate. Not withstanding any provision therein to the contra r y, unless otherwise expressly agreed in writing and evidenced by signature of both parties, a n y terms a ttache d to a purchase order or other customer

- provided document are expressly rejected and shal l have no force or effect. To the extent the se terms and c onditions are in conflict with any terms and conditions of a master service agreement with Le s see, the terms and conditions of the master service agr eement shall dictate, unless the conflict is ackn owledged in writing in which the parties exp re ssly agree t o conflicting terms. 32. COUNTERPARTS: This Agr eement , including Lessor’s proposal and these term s and c ond i ti o ns by referen ce therein, may be executed in one or more counterparts , each of whic h shall be deemed an original and all of which s hall be deemed to be one and the same agreement. S ignatures of acceptance may be exchanged by facsimile, scan or e - mail , a n d e ach party agr ees to be bound by its own telecopied or electronically submitted sig nature, and to accept the telecopy or electron ic signature of the other party. Alternatively, acce ptance of Le ssor’s proposal and these terms and conditions by r eferen ce t he r ein may be ma de by email acknowl edgement. (Emphasis added

. ) Aggreko’s Proposal further pr ovided : “1. TO PLACE THE ORDER: You

mu st sign and fax

. . . the enclosed acceptance page , ” and it stated, “ If your company uses purchase orders, please attach it t o the order. ” The attached

“ Proposal Acceptance ” addressed to Fern andez at BLH stated, “ To accept Proposal
12006

- 7593, please complet e, sign and return this page

. ”6

BLH received a nd reviewed the Proposal. R ather than signing and faxing th e acceptance page back to Aggreko as the Propo sal required , Fernandez e m ailed Aggreko Purchase Order 1

. In the email, Fer nandez stated that “ [t]he agree me nt was faxed to Aggreko from the M a terials Management office ” because he did “ not have a copy. ” Fern an dez ’ s email contained only Purc h ase Or der 1 , which was si g ned by BLH ’ s vice pre sident of materials management and i ncorporated material terms from the P ro posal such as the type of chiller and the cost of renting it. However, Purchase Order 1 contained diff erent terms and condition s , such as requiring that “ any price change must have approval of the purchasing depa rtment prior to delivery ” and provisions r eg arding payment s . After receiving Purchase Order 1 as signed by B LH , Aggreko embossed it

w ith a stamp s tating, “ Subject to the terms of Aggreko proposal 12006

- 7 593, dated 5/30/2012 of wh ich cu s tomer acknow ledges r eceipt, includi ng all terms and conditio ns e xpressly referenced therein , wh i ch are incorporated herein by reference. Customer agrees to be bound b y all such terms upon receipt of delivery of the equipment orders

. ” It faxed the stamped Purchase Order back t o BLH, but BLH did not sign the stamp ed re sp onse, n or did it acknowledge the stamped language in writing

. Aggreko then de livere d the c hille r the f ollowing day. 1

1 In June 2012, John Minton, BLH’s Lead Engineer, received and signed a bill of lading fo r the chiller. Th e bill of lading references the alleged agreed upon Proposal as “Agreement A285557 , ” and it also contain s a link to A ggreko ’ s T erms7

Followin g receipt o f the c hiller, Aggreko and BLH agreed to several change orders for installa tion and maintenance of the c hiller. Each ch ange order referenc ed the Prop osal and Aggreko ’ s Terms and Condit ion s but none were signed.
BLH end e d the rental contract several months later

. Aggreko employee Mananghaya wa s killed as the chiller was being re m oved fro m BLH ’ s premises.
B. Procedural Histo ry Mananghaya ’ s family s u ed BLH in N e w York state court . They did not su e Aggreko because worker compens ation laws barred a n y suit by Mananghaya ’ s heirs or estate against his employer

. BLH , h owever, filed third

- pa rty claims against Aggreko seeking common

- l aw indemnification.
and C onditions and incorporates them by reference. BLH objected to the ex hibit s filed by Aggreko in the tri al court . Aggreko filed a different copy of the b ill of lading the day the special appearance was submitted to the trial court. T he trial cou rt granted BLH ’ s mot ion to strike the exhibit because it was late

- filed and illegible , and it denied Aggreko ’ s late r motion for leav e to file yet another copy of the bill of lading

. Aggreko now argues that the bill of lading is properly before this Court b ecause BLH did not o btain a ruling on it s objections to the originally fi led bill of lading. T hus, i t appears from the record that A ggreko filed an additional document to address BLH ’ s objection to the illegibility of the original bill of lading, but the t rial court struck th at document and denied Aggreko leave to file another copy. We there fore disagree with Aggreko ’ s statement that t he bill of lading is properly before this Court as part of the special

- appear ance record. Furthermore, e ven if t he bill of lading could be cons idered a proper part of the special

- appearance record , a bill of lading typically does not have any con tractual significance

. See Tabulating Sys

. & Serv

. , Inc. v. I.O.A. Data Corp. , 498 S.W.2d 690, 694

– 95 (Tex. Civ. App.

— Corpus Christi 1973, no writ) ( holding that bill of lading does not stand for or represe nt contract between buyer and seller, but is r eceipt given by carrier for goods, coupled with agreement for their carriage according to terms e xpressed in bill ). Nothing in the bill o f lading here demonstrated that BLH agreed to be bound by the referenced T erms and C onditions

.8

Aggreko filed a motion to dismiss , asserting that the T erms and C on ditions governing the transaction between it and BLH contained a forum

- selection clause requir ing litigation in Harris County, Texas. The New York state court denied the

m otion to dismiss on January 4, 2014

. It hel d that the documents p roffered by Aggreko as the “contract” were not execute d and Aggreko did not meet its burden to prove the T erms and C onditions contr olled

. Aggreko appealed and the New York appel late court h el d that neither t he unsigned documents nor t he conduct of
BLH manife st ed that BLH accepted the P roposal and proposed T erms and C onditions

. Thus, the New York ap pellate court held that the referenced T erms and
C onditions containing the forum

- selection clau se wa s not enforceable. Litigation thus continued in New York state court.
I n January 2017, Aggreko fi l ed a motion for summary judgment ag ainst
BLH in the New Y ork state court suit

. A ggreko asked the court to appl y Texas law, as required by the T erms and C onditions

. Aggreko further argued that Texas law and the T erms and C onditions barred BLH ’ s indemnity cl aims against Aggreko. The New York state cour t again h eld that Aggreko did not prove as a matter of law that the parties a g ree d to the T erms and C onditi ons . The New Yo rk state cour t also rejected claims that the terms were bind ing and that B LH ratified the terms . Rather,
t he co ur t grant e d summary judgment in fav or o f BLH , findin g that BLH was entitled common - law indemnity from Aggreko on November 27, 2019

.9

Ra ther than appeal the final judgment , Aggreko filed suit against BLH in the United State s Di strict Co urt for the Southern District of New Y ork , seeking indem n ity based on the same alleged contract

. Approximately three months after it filed this suit, Ag gr e ko dismissed the federal s u it and filed the underlying suit in Texas in September 2020

. In the insta n t suit, Aggreko asserted that BLH accepted the T erms and
C onditions , or alternatively, ratified and was estopped from den y ing the T erms and C onditions

. BL H filed a special appearance arguing that it had no contact s with Texas and that it did not agree to b e bound by the T erms and C onditions contain ing the foru m - selection clause. Withou t holding a n evidentiary hearing , the trial court granted BLH ’ s specia l a ppearance and dismissed Aggreko ’ s suit

. Aggreko also filed a m otion for new tri a l , which the trial cou rt d enied

. A g g re ko filed a timely

no tice of appeal. Spe cial Appearance In three iss ues, Aggreko argues that the trial court erred in granting BLH ’ s
sp e c ia l appearance

. A. St a ndard of Review We review the tri a l cou rt ’ s grant or den ial of a special appearance de novo

. Moki Mac River Ex

pedi tions v. Drugg , 221 S.W.3 d 569, 575 (Tex. 2007)

.10

Aggreko does not argue that the trial court can assert either general or
sp ecific jurisdicti o n over BLH. Ins tead, it s assertion of personal jurisdiction over BLH relies solely o n the purported agreement containing a forum

- se lection cla use . Thus, the t raditional an alysis of specific or gener al jurisdiction an d due proces s consi der at ion s is unnece s sa ry. Guam Indu s. Serv s. , I nc. v. Dresser

- Rand Co. , 5 14 S.W.3d 828, 833 (Tex. App.

— Houston [1st Dist.] 2017, n o pet.)

. T he review instead fo cuses on whether the trial court properly enforced, or declined to enforce, the forum

- s election cla use. Id

. We review a trial court ’ s decision on the validity or

en forceability of a forum

- selection clause under an abuse of discret ion stand ard ,

exc ept wh e n r eview involves contractual interpretation of the clause, for which we employ a de novo standard of review. 2 Id. ; Barnett v. Network Sols., Inc ., 38 S.W.3d 2 00, 203 (Tex. App.

— Eastland 2001 , pet. de nied )

.

2 In their briefin g, the parties di sagree regarding the standard of re view that should apply when, a s here, there was no evidentiary hearing. A ggreko cites t o Moncrief Oil and Villagomez to argue the Court should review the fa cts de novo when no e videntiary hearing occurs. Both parties ackn owledge that, g enerally, w hen the trial co urt does n ot i ssue findings of fact for its special

- appearance dec ision, reviewing courts presume that all fact disputes were resolved in favor of the decision and imply all relevant facts necessar y to support the judgment that are supporte d by the evide n ce , unless they are chall eng e d on appeal. Luci ano v. SprayFoamPolym ers.com , LLC , 625 S.W.3d 1, 8 (Tex. 2021) ; Guam Indus. Servs., Inc. v. Dresser

- Rand Co. , 514 S.W. 3d 828, 83 2 (Tex. App.

— Houston [1s t Dist.] 201 7, no pet.). Aggreko , however, qu otes conc erns raised in Moncrief Oil to argue that, when the trial court merely re views evidence with out the oppo rtunity to make any credibility determinations at an evidentiary hearing, the appellate court is “ in the same posit ion as the trial court ” and “ imp l ying all facts supported by the evidence in fa v or of the trial court ’ s ruli ng seemed inap pro priate. ” Moncrief Oil Int ’ l , Inc. v.11

B. Relevant L a w In it s first issue, Aggreko argues t hat the trial court erred in gra nting B LH ’ s special appearance because the forum

- selection clause i n i t s T erms and C onditions applies and obligates BLH to liti gate in Texas

. BLH, however, argues that th e f or um - selection clause does not ap pl y because it n ever agreed to be bound by Aggreko ’ s T erms and C onditions

. BLH ar gue s that the Proposal expressly re qui red acceptance by signature , which BLH did not provide

. I n stead , BLH counter offered th rough its P urcha s e O rder with different terms

. BLH f urther argues that it did no t acknowledge or consent to be bound by the T erms and C onditions thr ough its later cond uct , including when it acc epted the delivery of the c hiller or when it accep ted the installment and maintenanc e services for the c hiller

. Thu s, it argues, Aggreko ’ s claims tha t BLH ratified the T erms and C onditions or that BLH is estopped from denying that it is bound by the T erms and C onditions likewise f ail.

OAO Gazprom , 332 S.W.3d 1, 7 (Tex. App.

— Fort Worth 2010), aff ’ d in part , rev ’ d in part , 414 S. W.3d 142 (Tex. 2013 ); Villagom ez v. Rockwood Specialties, Inc. , 210 S.W.3d 720, 727 (Tex. App.

— Corpus Christ i

– Edi nburg 2006, pet. denied). W e note, however, that neither the Moncrief Oil nor the Villagomez courts actually applied the de no vo review. See Mo ncrief Oil , 332 S.W.3d at 8; Villagome z , 21 0 S.W.3d at 727 ; see also Moncr ief Oil , 414 S.W.3d at 150 n.4 (no t ing argument that appellate court should review implied findings de novo when there is no live testimony but concluding that “ we n eed not address t his issue because the relevant facts are undisputed ” )

. W e further note that neither party requested an evid entiary hearing or findings of fact from the trial court. Furthermore, n othin g in this Court ’ s analysis turns on any imp lied findin gs of fact purpor tedly made by the trial court. According ly, we continu e to apply the standard of review as set out above

.12

To d etermine w hether forum

- selection clause appl ies , we must determine whether the pa rties a greed to be bound by the T erms and C onditions referenced in the Proposal and other documents from Aggrek o . A bi ndin g c ontract exists when there is “(1 ) an offer; (2) a cceptance in strict compliance with the terms of the offer ; (3) a meeting of the minds; (4) each party’s cons ent to the te rm; and (5) execution and delivery of the contract with the intent tha t it be mut ua l and binding.” Lujan v. Alorica , 4 45 S.W.3d 443, 4 48 (Tex. App.

— El Paso 2014, no pet.) (citing Baylor Univ. v. Sonn ichsen , 221 S.W. 3d 632, 635 (Tex. 2007)).

“ Contracts r equire mutual assent to be enforceable, ” and “ [e] vide nce of mutual

as sent in w ri tten contracts generally consists of signatures of the parti e s and delivery with the intent to bind

. ” Sonnichsen , 221 S.W.3d at 635

. To de termine whether there was a mee ting of the minds, a court reviews in an object ive fashion, without considering sub

je ct ive inte nt, what the parties actu ally said and did

. Parker Drilling Co. v. Romfor Supply Co ., 316 S.W .3d 68, 75 (Tex. App.

— Houston [14th
D ist.] 2010, pet. denied); C hoct aw Prop s . , L.L.C. v. Aledo I n dep. S ch

. D ist

. , 127
S.W. 3d 235, 245

– 246 (Tex. App.

— Waco 2 003 , no pet.)

.

“ Under p r inciples of Texa s contract law, a party ’ s failure to sign an agreement will render it unenforceable when the terms of the contract make it clear that the party ’ s signature is required to make it binding. ” SK Plymouth , LLC v.
Simmo ns , 605 S.W.3d 706, 715

– 1 6 (Tex. App.

— Hous ton [1st Dist.] 2020, no pet.)13

(c iting Mid

- Continent Cas. Co. v. Glob. Enercom Mgmt., Inc. , 323 S. W.3d 151, 157 (Tex. 2010) (“Texas law recognizes that a contract need not be signed to be ‘executed’ unless the part ie s explicitly require si g natures as a con di tion of mutual assent.”) ).
Las tly, a ny mat erial change in a proposed contract constitutes a coun ter offer, which, in turn , must be accepted by the other par ty. Chapman v . Mitsui Eng ’ g & Shipbuilding Co., Ltd ., 781 S .W.2d 312, 316 (Tex. A p p.

— Houston [1st Dist.] 1989, writ deni ed) ; s ee P arker Drilli ng , 316 S.W.3d at 74 ( holding that “ a purport ed acce pta nce that c hanges or qualif ies an offer’s material terms constitutes

a r e jection and coun ter offer rat her than an acce pt ance ” )

. C. Analysis He re , Aggrek o emailed the P roposal referen cing i ts online T erms and C onditions containing the forum

- selection clause to B LH. The Proposal expressly required BLH to sign and return th e acceptance page in order to accept the proposal

. BLH di d not sign and return acceptance page , nor did it provi de any written acknowledg ment t hat it accepted the T erms and C onditions

. Instead, B LH sent Aggreko the Purchase Order , which incorporated the Proposal ’ s designation of the ty pe of chiller and cost fo r rental but contained d ifferent terms and conditions

. Aggreko proceeded to d eli ver the ch iller without obtaining a sig ned acceptance sheet from BLH.14

Aggreko has presented no evidence that it ob tain ed the signed acceptance of its P roposal, including the T e rms and C onditions , as e x p r e s s l y r equired in the Proposal

. Thus, BLH ’ s failure to sign the Proposal ’ s acceptance sheet rendered it unenforce able be cause the Proposal ’ s own terms ma d e it clear that acceptance would be accomplished b y signing and returning t he acceptance sheet. See SK Plymouth , LLC , 605 S.W.3d at 715

– 1 6

. In stead, BLH respon ded by sending its own Purchase Order . The Purchase Orde r contained different terms and thus constituted a counter of fer , rather than an acceptance , of the Pro p osal

. See P ar ke r Drilling , 316 S.W.3d at 74 ; Chapman , 781 S.W.2d at 316

. Aggreko received the P urchase Order and stamped it with a reference to its o nlin e T erms and C onditions . However, BLH did not sign the Purchase O r der again after Aggreko a ffixed the stamp . Aggreko de livered the chiller without obtaining a signed acceptance of the Proposal or other assent to its
T erms and C onditions

. Vi ewin g the parties ’ actions objectiv ely, the absence of BLH ’ s signa t ure on the acceptance sheet or express a greement to the T erms and C onditions referenced in the Proposal and Aggreko ’ s performance without obtaining the signed acceptance page demonst rates that the parties n ever agree d to be bo und by the provisions c ontained in Aggreko ’ s T erms and C onditions

. S ee Sonnichsen , 221 S.W.3d at 6 35 ; Parker Dril ling , 316 S.W.3d at 75 , 77

. Aggreko has f ailed to15

demonstrate that BLH agreed to be bound by t he forum

- selection clau se con tained in the T erms and C onditions

. Aggr eko argues that when BLH ’ s employee John Milton a ccep ted del ivery of the ch il l er and signed the bill of lading, he implicitly accepted the T erms and C onditions

. However, “ [o] ne who seek s to hold a corporation liable upon a contract made by an agent has th e bur den of proof, not only of the execution of th e contract for the corpora ti on, but the au thority of the agent through whom it is clai med the corporation acted.” R.B. Spe ncer & Co. v. Thorp Springs Christian Coll ., 41 S.W.2d 482, 486 (Tex. App.

— Fort Wo rth 193 1, writ dism’d w.o.j.) ; see Huynh v. Nguyen , 180 S.W.3d 608, 622 (Te x. Ap p.

— Houston [14th Dist.] 2005, no pet.) (holding that agent cannot bind principal unless agent has actual or apparent authority to do so)

. Her e, Aggre ko present ed no evidence that Mi l t on had authority to accept a contract on behalf of BLH , nor did it pres en t any evid ence that Milton knowingly agreed to bind BLH to th e Propo sal ’ s T erms and C onditions

. Aggreko also argues that Fe rn andez consent ed to the Terms and Conditions by stat ing he faxed the “ agreemen t ” and r eque st ed delivery in the same email in which h e sent Aggre ko BLH ’ s Purchase Order . This conduct, likewise , d oes not demonstrate BLH ’ s agreement to be bound by the forum

- selection claus e . The

“ agreem ent ” referenced by Fernandez was not ident ified in the email, and Ag greko16

has presented no evidence th at BLH provided it with a signed acceptance sheet as required by the terms of the Proposa l. Fernandez ’ s email does not make any reference to Aggre ko ’ s T erms and C onditions

. Aggreko also argues that BLH ’ s subsequ ent actions of accepting the chiller demonstr at e either that it ratified the T erms and C onditions through its conduct, or that BLH asse nted to all of the terms of the Proposal when it a ccepte d the chiller and should therefore be estopped from disclaiming its agreement to the forum

selection clause. W e disagree

. BLH ’ s acceptance of the chiller under the c ircumstances set out above constitutes no evidenc e that it ratified Aggreko ’ s T erms and C onditions

. As with contract formation, whether a party has ratified changes to a contract is a matter of intent

. BPX Operating Co. v. Strickhausen , 629 S.W.3d 189, 19 6 ( Tex. 2021)

. “ A party ’ s subjective state of mind is immaterial to a claim of implie d ratificati on. ” Id. at 197. A party claiming implied ratification m ust offer objective evidence of int ent, such as a party ’ s conduct. Id. ; s ee Mo. Pac. R.R. Co. v. Lely Dev. Corp. , 86 S.W.3d 787, 79 2 (Tex. App.

— Austin 2002, pet. dism ’ d) (“Ratification may be inferred by a party ’ s course of conduct and need not be shown by exp ress word or deed.”). “As with most objectiv e inquiries, determining a party ’ s objective intent requires an examination of ‘the totality of the circumstances.’ ” BPX Operating
Co. , 629 S.W.3d at 197

.17

The Supreme Court of Texas has held, “ When analyzing a claim of implied ratification, we are mindful t hat ‘ [t]he liberty to make contracts includes the corresponding right to refuse to accept a contract or to assume such liability as may be proposed. ’ ” Id. (qu oting St. Louis Sw. Ry. Co. of Tex. v. Griffin , 171 S.W. 703, 704 ( Tex. 1914) )

. Thus, “ i mplied r a t ification should b e found only if th e party ’ s actions ‘clearly evidenc[e ] an intention to ratify. ’” Id. (quoting Chrisman v. Electra start of Hou s., Inc ., No. 14

- 02

- 005 16

- CV, 2003 WL 22996909, at *5 (Tex. App.

— Houston [14t h Dist.] Dec. 23, 2 003, no pet.) (m e m. op.)). Under this standard, Aggreko failed to meet its burden to prove that BLH intended to ratify the Proposal ’ s T erms and C onditions

. BLH did not sign or otherwise acknowledge in writing the T erms and C onditions referenced in t he Proposal. Inst ead , BLH r esponded with the Purchase Order containing BLH ’ s own
t erms and c onditions. Agg reko ’ s s ubsequent referr als to the T erms and C onditions in its st amp on the Purchase Order or in the bill of lading are Aggreko ’ s own

ac tions

— they are not actions by BLH clearly evidencing an intent to agree to b e bound by the Proposal ’ s T erms and C onditions

. Rather, BLH ’ s acceptance of and payment f

or the ch iller demon strate its performance under the contract formed

w hen it effectively counter offered with its own Purchase Order terms , and Aggreko accepted the counter offer by providing the agreed

- upon chiller for the18

agree d

- upon price without req u iring the exp ress accep tance of the terms of the Proposal. Nor did any of the change orders between the parties demonstrate rati fication of the Prop osal ’ s T erms and C onditions . Th e purpose of Aggreko’s subseque nt change orders was to determine the pricing for necessar y and requ ired installation and maintenance of the c hiller. Although the change order s ref erenced the Proposal and i ts T erms and C onditions , BLH did not sign the change ord ers or acknowledge the T erms and C onditions

. Accordingly, we conclude that Aggrek o f ailed to establish that BLH ratif ied the T erms and C onditions referenced in the Proposal and other communications fr om Aggre ko

. See id. Likewise, BLH ’ s acceptance of the chill er under the circumstances set out above con stitutes no evidence that it agreed t o be bound by all of the T erms and
C onditions set out in the Prop osal, estopping it from disclaiming the forum

s elec tion cla use. “Under ‘direct benefits estoppel,’ a non

- signatory plaintiff seeking the benefits of a contr act is estopped from simultaneously attempting to avoid the contract ’ s burden s [.] ” Taylor Morrison of Tex. , Inc. v. Ha , 660 S.W.3d 529, 533 ( Tex. 2023)

. This i s not a situation where BLH is seekin g benefits of a contract while simul taneously avoiding its bur den s; rather, it is a question of w hat terms the parties agreed to when the contract was formed. As discussed above,
BLH ’s acceptance of and payment f or the chiller do not demonstrate a n acceptance19

of the benefits of a contract as embodie d by the Proposal. Rather, BLH ’ s subsequent perform ance was of the contract formed w hen it ef fectively
counter offered with its own Purchase Order terms and Aggreko acc epted th e
counter offer by providing the agreed

- upon chiller for the agree d

- upon price without req u iring the express acceptance of the terms of the Proposal. Nothing in the record d emonstrates that Aggreko ’ s T erms and C onditions were ever made a part of the agreeme nt between Aggreko and BLH , so the estoppel argument is unavail ing. Aggreko ’ s arguments that its own T erms and C onditions were i nco rporated into the parties ’ agreement all turn in large part on Aggreko ’ s unilateral statements that th e T erms and C o nditions apply. It points out th at the Proposal itself states that

“ [a] ll services provided by Aggreko are subject to ‘ Aggreko North America Rental Agreement Terms & Conditions ’ ” and that “ [c] ustomer accepts and acknowledges receipt thereof by these method s. Aggre ko will accept no alternative terms and conditions. ” The stamp Aggreko placed on the Purchase Order likewise referenced the T erms and C onditions , a s did some other comm uni cations. Aggreko also points
to t he language in the T erms and C onditions them selves, includ ing the provision that states , “ The terms and conditions hereof shall be deemed accepted and binding upon Lessee upon transfer of custody of the Equipment to the carrier for delivery to Lessee’s receiving point, regardless of whether the Rent al Agree ment is signed20

by Lessee. ” Under these terms, Aggreko asserts that no signature was ne cessary. But as disc ussed above, these terms w ere never incor porated into the agre ement between Aggreko and BLH. Aggreko ’ s reliance on this language that the T erm s and C onditions apply upon acceptance of the chiller , regardless of whether the lessee signed a rental agreement, is consistent with imposi tion of a unilateral contract. A uni lateral
contract is created by the promisor promising a benefit if the promisee performs

. Vanegas v. Am . Energy Servs. , 302 S.W.3d 299, 302 (Tex. 2009) (citing R ICHARD A. L ORD , W IL LISTON ON C ONT RACTS § 1 .17 (4 th ed. 2007 ) ( “A unilateral contract occurs when there is only one promisor and the other party a ccep ts, not by mutual promise, but by actual performance or forbearance.” )). A unilateral contract becomes enforceable when the promisee performs. City of Houston v. Will iams , 353 S.W.3d 128, 136 (Tex. 2011). The evidence here, however, does not establ is h the existence of a unilateral
contrac t. The parties exchanged d ocumentation and paperwork setting out various terms and conditions. And the Proposal that first int roduce d Aggreko ’ s T erms and
C onditions required accept ance by signature

— not by s ubsequent p erformance. The record is not o nly miss ing a signed rental agreement, but it is also missing a signed acceptance sheet that would have shown BLH ’ s acceptance of all of the T erms and C onditions set out in or incor porated in the P roposal

. Given these facts, n o21

subsequent conduct by BLH in accepti ng the chiller indicated an agreement to be bound by the forum

- se lec tion clause contai n ed in Aggreko ’ s online T erms and
C onditions

. Aggreko has failed to provide any evidence of a me eting of the minds between itself a nd BLH with regard to applicabi lity of the T erms and C onditions contain ing the forum

- selection clau s e. T o have a mee ting of t he minds, t he offered set of promises must be objective ly definite and unambi guous so tha t the parties are demonstrably agreeing to the same promises

. See Cadence Bank, N .A. v. Elizondo , 642 S.W.3d 530, 534

– 535 (Tex. 2022) (wire t ransfer request form not bindi ng contract); Guajar do v. Hitt , 562 S.W.3d 768, 778 (Te x. App.

— Houston [14th Dist.] 2 018, pet. denied) (contract based on assumptio ns and subjective beliefs n ot bindi ng); Wells v. Hoisager , 553 S.W.3d 515, 522

– 23 (Tex. App.

— El
Pa so 2018, no pet.) ( holding that letter from buyer signed by one of it s agents di d
not constitute agreement to purchas e lan d i nterest and stating that , “ [ w] hil e a meeting of the minds di spute is usually tre ated as a question of fact, we will treat it as a question of law if the intent of the parties is clear from the face of the document ” )

. Here, the Proposal required acceptance by signing and returning the

acc eptance sheet. BLH never si gned the acceptance sheet, but instead provided alternate documentation in th e form of its Pu r chase Order. Thus, it is clear from the22

face o f the documents that BLH did not accept the terms of the Proposal. See Wells , 553 S.W.3d at 522

– 2 3

. We overrule Aggr eko ’ s f irst issu e on appeal. Bec ause w e conclude that Aggreko failed to prove that BLH agreed to be bound by the T erms and C onditions contai ning the forum

- selection clause, and thus affirm the trial court ’ s grant of the special appearance on that ground, w e need not addr e ss Ag greko ’ s a dditional

a rgument that the trial court erred t o the extent it concluded that Aggreko waived it s rig ht to enfo rce the forum

- selection clause. 3

3 We like wise overrule Aggreko ’ s third issue. In that issue, Aggrek o co mplain s that the trial court failed to rule on its objection to a verific ation by BLH as par t of its special appearance

. We first note that, i n i ts order den ying Aggreko ’ s motion for new trial, t h e trial court overruled the objection concerning the verification

. Even if the trial court ’ s denial in its motion f or new trial constitute s a failure to rule on Aggreko ’ s objection, such failure was harmless. BLH ’ s special appearance was accompan ied by t he affidavit of one of its witness es, in addition to the verification of its co unsel. Although Aggreko objected to counsel ’ s verification, i t failed to object to the witness affidavit or any of the documentary evidence attached to the special appea rance. T hus, all of the f acts asserted in the special appearance were supported by witness affidavit and other documentary evidence

. See Washington DC Party Shut tle, LLC v. IGuide Tours , 406 S.W.3d 723, 730

– 3 1 (Tex. App.

— Houston [14th Dist.] 2013, pet. den ied ) ( ho lding defe ct in verification harm less where attached evidence supported all a sserted facts).23 Co nclusion We affirm the trial court ’ s order granting BLH ’ s special appe arance and its dismissal of Aggreko ’ s claims against BLH

.

Richard Hightower Justice Panel consists of Chief Justice Adams and Justices Hightower and Countiss.