1 DISSENT and Opinion Filed March 1, 2019 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-01028-CV IN RE FREIGHTQUOTE.COM, Relator Original Proceeding from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-18-01862-D 

### DISSENTING OPINION Opinion by Justice Whitehill I respectfully dissent from the majority opinion because the un disputed facts and controlling law permit only one conclusion: The parties unambi guously agreed to a contract which incorporated by reference a valid forum selection clause requir ing that this dispute be tried in Missouri. Therefore, the trial c ourt abused its discretion in refusing to enforce that agreement, and mandamus lies to correct that error. I. The Issue This case turns on whether AMCAD’ s signature on a contract imme diately below the words “CUSTOMER AGREES TO THE O RGANIZATION’S TERMS AND CONDITIO NS, WHICH CAN BE FOUND AT WWW.FREIGH TPAYCENTER.COM” incorporated by reference the terms and conditions found at that location. The answer to that question based on accepted contract law principles a nd our facts is “yes.”2 Accordingly, we should conditionally grant the petition and dir ect the district court to dismiss the case against Frei ghtquote.com without prejudice. II. Controlling Facts The controlling facts are st raightforward and undisputed: 

### 1. Freightquote.com “is an online tr ansportation broker of freight services operating throughout North America.” “Frei ghtQuote markets its services through the internet and bases its broker services on technology it de veloped for customers to com pare carrier freight services.” 

### 2. AMCAD “enrolled” as a Freightquote.com customer on May 27, 2014

. 

### 3. AMCAD sued Freightquote.com for breaching a contract between th ose two parties. 

### 4. The parties’ contract here is a bill of lading. 1 

### 5. AMCAD had 134 similar contracts with Freightquote.com before th is one. Each one relied on a website link to direct AMCAD to the terms and c onditions applicable to that transaction. 

### 6. AMCAD initiated this contract over the phone, and Freightquote. com confirmed the agreement with an email. 

### 7. That confirming email contained a blue hyperlink to “Freightquo te.com’s Terms and Conditions.” 

### 8. That same email also (i) attached a bill of lading for the ship ment and (ii) directed AMCAD to have the bill of ladi ng ready to present to the driver at pickup. 

### 9. AMCAD signed the bill of lading.

1 Texarkana & Ft. S. Ry. Co. v. Brass , 260 S.W. 828, 829 (Tex. Comm’n App. 1924, judgm’t adopted); see Federal Express Corp. v. Tech One Trading Co ., No. 05-03-01182-CV, 2004 WL 1663964, at *1 (Tex. App.—Dalla s July 19, 2004, no pet),(citing Se. Pac. Transp. Co. v. Coml. Metals Co., 456 U.S. 336, 342 (1982)).3 

### 10. Directly above AMCAD’s signature, the contract says: “CUSTOMER AGREES TO THE ORGANIZATION’S TERMS AND CONDITIONS, WHICH CAN BE FOUND AT WWW.FREIGHTPAYCENTER.COM.” 

### 11. The terms and conditions found on that website begin by stating in large letters that they are “Freightquote terms and conditions



## . ”


### 12. Those terms and conditions define the word “Company” as used th erein to be “Freightquote.com, Inc.®” and its corporate affiliates. 

### 13. They also (i) define the word “Customer” to be “The enrolled Cu stomer, Shipper, and/or Consignee” and (ii) provide that the Customer agrees “to these TERMS AND CONDITIONS.” 

### 14. The terms and conditions apply to all shipments scheduled by Cu stomer: These TERMS AND CONDITIONS shall apply to all shipments schedul ed by Customer, unless and until these TERMS AND CONDITIONS are alter ed or amended by the Company. (There is no suggestion that the terms and conditions have been altered or amended in any way relevant to this case.) 

### 15. The terms and conditions also contain a forum selection clause providing that any litigation between the Company a nd the Customer relating to any shipment tendered pursuant to the terms and conditions shall be filed in specified courts in Missouri. 

### 16. And the terms and conditions stipulate that the Company is a br oker only. 

### 17. Finally, the terms and conditions s tate policies and procedures for handling claims between the Company and the Customer. AMCAD’s petition states that “AMCAD cooperated with FreightQuote and followed Fre ightQuote’s claim procedures” relevant to this dispute.4 III. Analysis Texas law requires Texas courts to enforce valid forum selectio n clauses that encompass disputes before those courts. That a contract existed between AMCAD and Freightquote.com is c ertain: AMCAD sued Freightquote.com for contract bre ach. There is only one contra ct between those parties at issue here. AMCAD obviously knows who th e contracting parties are. AMCAD’s signature on that contract is not disputed. That contract says AMCAD agreed to t he “Organization’s” terms and conditions found at a specific webs ite. Freightquote.com is th e only organization that the word “Organization” in this context could logically refer to. The c ontract identifies only one website to engage for reading the applicable terms and conditions. The terms and conditions found at the designated website contai n a forum selection clause, which mandates that covered dis putes be brought in specific Mis souri courts. This dispute is within that clause’s scope. No evidence in this record could s upport a finding that (i) the clause imposes an impermissible burden on AMCAD, (ii) AMCAD was defrau ded into agreeing to that clause, or (iii) any other rec ognized ground exists for avoidin g the clause. Accordingly, the trial court clearly abused its discretion by r efusing to enforce that clause in this case. A. Applicable Law We stated in Bob Montgomery Chevrolet, In c. v. Dent Zone Companies that: When construing a contract, our primary goal is to determine th e parties’ intent as expressed in the terms of the contract. Chrysler Ins. Co. v. Greenspoint Dodge of Hous., Inc., 297 S.W.3d 248, 252 (Tex. 2009); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Unsigned documents may be incorporated into th e parties’ contract by referring in the signed document to the unsigned do cument. Owen v. Hendricks, 433 S.W.2d 164, 167 (Tex. 1968). The language used to refer to the incorporated document is not important as long as the signed do cument “plainly refers” to the incorporated document. Id.; In re C & H News Co., 133 S.W.3d 642,5 645 (Tex. App.—Corpus Christi 20 03, orig. proceeding). Document s incorporated into a contract by reference become part of that contract. In re 24R, Inc., 324 S.W.3d 564, 567 (Tex. 2010) (orig. proceeding) (per curiam). Wh en a document is incorporated into another by reference, both instruments must b e read and construed together. In re C & H News Co., 133 S.W.3d at 645–46. Plainly referring to a document requires more than merely ment ioning the document. See Trico Marine Servs., Inc. v. St ewart & Stevenson Technical Servs., Inc., 73 S.W.3d 545, 549–50 (Tex. App.—Houston [1st Dist.] 2002, man damus denied). The language in the signed document must show the part ies intended for the other document to become part of the agreement. See One Beacon Ins. Co. v. Crowley Marine Servs., Inc., 648 F.3d 258, 267 (5th Cir. 2011) (citing 11 SAMUEL WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW OF CONTRACTS § 30:25, at 234 (4th ed. 1999) (“in order to uphold t he validity of terms incorporated by reference, it must be clear that the part ies to the agreement had knowledge of and assented to the incorporated terms”)); 17A C.J.S. Contracts § 402 (2011) (“For an incorporation by reference to be effectiv e, it must be clear that the parties to the agreement had knowledge of and assented to the incorporated terms.”). 409 S.W.3d 181, 189 (Tex. App.—Dallas 2013, no pet.). It does not matter that the additional terms and conditions wer e not physically attached to the bill of lading itself. See LDF Constr., Inc. v. Tex. Friends of Chabad Lubavitch, Inc. , 459 S.W.3d 720, 729 (Tex. App.—Houst on [14th Dist.] 2015, no pet.) (“[T]here is no requirement that the incorporated document contai ning the arbitration clause mus t necessarily be attached to the contract for the clause to be enforceable.”). Furthermore, the weight of authority is that it doesn’t matter if the additional terms and conditions are to be found on the internet instead of in a phys ical document. See, e.g. , One Beacon Ins. Co. v. Crowley Marine Servs., Inc. , 648 F.3d 258, 269 (5th Cir. 20 11) (“[U]nder admiralty law—which generally follows the common law of contracts in reso lving maritime contract disputes—maritime contracts may validly incorporate terms from a website in the same manner that they may incorporate by reference terms from paper documen ts.”); Morgantown Mach. & Hydraulics of Ohio, Inc. v. Am. Piping Prods

. , Inc. , No. 5:15-cv-1310, 2016 WL 705261, at *5 (N.D. Ohio Feb. 23, 2016) (“Several courts have applied traditi onal contract law to find terms and6 conditions located on a company’s website to be incorporated in to a contract where they were clearly referred to and could be easily located by the challeng ing party, especially where that party is a commercial entity.”); Burcham v. Expedia, Inc. , No. 4:07CV1963 CD P, 2009 WL 586513, at *2 (E.D. Mo. Mar. 6, 2009) (“A c ustomer on notice of contract t erms available on the internet is bound by those terms.”); Pentecostal Temple Church v. Streaming Faith, LLC , No. 08-554, 2008 WL 4279842, at *5 (W.D. Pa. Sept. 16, 2008) (“Plaintiff’s asser tions that the [forum selection] clause should be disregarded because the Purchase Order incorpo rated terms and conditions only available on the Defendants’ website, and not provided in hard- copy to the Plaintiff, must also fail.”); see also Dakota Foundry, Inc. v. Tromley Indus. Holdings, Inc. , No. 1:11-CV-01026, 2012 WL 32440, at *6 (D.S.D. Jan. 5, 2012) (“With the widespread acc essibility of the Internet, companies are turning to posting their general terms and condit ions online and incorporating them into a physical document by refere nce to the Inter net site wher e they are located. Some courts are accepting that practice.”). We should adopt this rule.

B. Application to Facts The undisputed mandamus record e stablishes that AMCAD contacted Freightquote.com to arrange for shipping AMCAD’s goods to AMCAD’s customer. That c ontact resulted in a bill of lading contract between AMCAD a nd Freightquote.com for that pur pose. That bill of lading is the contract on which AMCAD bases its contract breach claims ag ainst Freightquote.com. And it is that same contract that crea ted the relationship on which AM CAD bases its tort claims against Freightquote.com. The bill of lading plainly (i) re fers to the additional terms a nd conditions and (ii) tells AMCAD where to find them. The c ontract also plainly expresses AMCAD’s unmistakable agreement to those terms and conditions.7 Not only does the record establish that AMCAD agreed to the ter ms and conditions, but the record also establishes th at Freightquote.com is the contra ct’s counter-party. Given that there is only one bill of lading involved in this case in which Freig htquote.com is the defendant and that Freightquote.com sent that bill of lading to AMCAD, the only lo gical conclusion is that the word “Organization” in this contex t refers to only F reightquote.com. Furthermore, the website confirms that Freightquote.com is the “Organization” referred to in the bill of lading by labeling the terms and conditions as “ Freightquote terms and conditions.” Additionally, the facts establish that AMCAD is the Customer an d that Freightquote.com is the Company as the terms and conditions define and use those terms. AMCAD is the Customer that contracted with Freightquote the Company for Freightquote to arrange for shipping to deliver AMCAD’s goods. AMCAD cannot reasonably argue that it could not anticipate havi ng to engage a website to find the applicable terms and conditions; it was doing busin ess with an entity named “Freightquote.com.” Moreover, AMCAD knew from day one that Freightquote.com’s terms and conditions were to be found by visiting a website location. That fact was stated in the initial Customer Enrollment and was repeated 134 more times before signing the s pecific bill of lading in this case. That it successfully completed s ix prior entirely web-based tra nsactions with Freightquote.com proves AMCAD’s ability to successf ully navigate that platform. And AMCAD could not have missed the reference to the website li nk to the terms and conditions—AMCAD’s signature agr eeing to be bound by them appea rs right below the reference to those terms and conditions and the website link.8 Nor can AMCAD reasonably argue that the web-link reference to “ Freightpaycenter.com” somehow misled AMCAD and nullifies AMCAD’s agreement to the ter ms and conditions found by following the link. The rele vant terms and conditions could have resided on any website with any name and any web-address so long as Freightquote.com gave A MCAD the correct address to get to that website. It did. There was only one link and only on e website specified for AMCA D to follow. AMCAD could not have gotten lost and ended up with a different set of terms and conditions by following that path. These facts and result are the same as if AMCAD agr eed to be bound by a set of terms and conditions contained in a specific folder located on a spec ific desk in a specific AMCAD office. AMCAD does not deny that its claims and litigation against Frei ghtquote.com fall within the forum selection clause’s sc ope if the parties’ contract inc ludes that clause. As discussed above, it matters not that the terms and condition s were not physically attached to the bill of l ading or were on a website. Because the only logical conclusion is that the parties’ contra ct incorporated by reference the terms and conditions found on the specified website, the tr ial court abused its discretion by refusing to enforce the forum se lection clause included in thos e terms and conditions. C. Bob Montgomery Chevrolet does not compel a different conclusion. Bob Montgomery Chevrolet, Inc. v. Dent Zone Companies is distinguishable because, unlike the present case, the contract there did not say that th e parties agreed to the terms and conditions written on the website . Instead, in that case we wr ote: We conclude the referring language in this case, “Additional be nefits, qualifications and details of the PDR LINX Serv ice Program are available for y our review at our website: http://www.linxmanager.c om/pdf/CRCTermsConditions. pdf ,” does not indicate the parties intended to incorporate the internet docum ent. Instead, the9 language indicates the internet document contained informative but noncontractual material about the PDR LINX Service Program. Id . at 193. Assuming, as we must, that Dent Zone was correctly decided on its particular facts, the different, more direct language i n the present case plainly sta tes the parties’ unambiguous agreement to the terms and conditions stated at the designated website. Thus, Dent Zone ’s specific holding does not apply to the specific contract before us. Ins tead, we should follow Dent Zone ’s general principles quoted above. D. Conclusion Although allowed sparingly and as an extraordinary remedy, mand amus relief exists to remedy situations where a trial court clearly abuses its discre tion and the relator has no adequate appellate remedy, such as where a trial court declines to enfor ce a valid forum selection clause covering a dispute before it. The record here conclusively establishes that (i) the parties p lainly agreed to governing, written terms and conditions resid ing at a specific and readily accessible website; (ii) those terms and conditions contain a valid for um selection clause requiring that certain disputes be litigated in designated Missouri courts; and (iii) the parties’ present disp ute falls within that clause’s scope. That being so, existing Texas law requires our courts to respec t and enforce the parties’ contract. Because the trial court declined to so, mandamus relief is prop er in this case. IV. Disposition Accordingly, we should grant relator’s petition and direct the trial court to dismiss this case without prejudice with mandamus to issue only if the trial cour t does not do so within fifteen days.

181028DF.P05 /Bill Whitehill/ BILL WHITEHILL JUSTICE