Denied and Opinion Filed March 1, 2019
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
MEMORANDUM OPINION
Before Justices Myers, Whitehill, and Carlyle
Opinion by Justice Myers
In this original proceeding, relator Freightquote.com (“Freightquote”) complains of an
order denying its motion to dismiss based on a forum-selection clause. At issue is whether a bill
of lading incorporated a forum-selection clause Freightquote maintains is available on
Freightquote’s website and was included in the initial enrollment agreement between Freightquote
and real party in interest Amcad Enterprises (“Amcad”). Freightquote seeks a writ of mandamus
directing the trial court to vacate the order denying the motion to dismiss and to dismiss Amcad’s
claims. Under this record, we conclude Freightquote has not established a clear abuse of discretion
and deny the petition for writ of mandamus.
Background
Freightquote is an online freight service provider and a licensed transportation property
broker that works with a network of carriers to negotiate rates for shippers. Freightquote’s
headquarters is located in Kansas City, Missouri. Amcad is a graphics distribution company with
its principal place of business in Carrollton, Texas. Amcad enrolled online as a Freightquote
customer on May 27, 2014. Amcad received an e-mail from Freightquote customer service
confirming the creation of Amcad’s account. A hyperlink to Freightquote’s terms and conditions
was listed at the bottom of the confirmation e-mail below Freightquote’s contact information. The
enrollment e-mail received by Amcad did not, however, include a statement directing Amcad to
view the terms and conditions or stating that Amcad agreed to the terms and conditions.
Amcad utilized Freightquote’s brokerage services for 134 shipments between Amcad’s
initial enrollment in 2014 and the December 23, 2016 shipment at issue in this case. Amcad
booked six of the 134 shipments “externally” through Freightquote’s website. Amcad booked the
other 128 orders “internally” by calling Freightquote and speaking with a sales representative.
Following each phone call or website order, Amcad received a confirmation e-mail
acknowledging the shipment. Each confirmation e-mail included a blue hyperlink to
Freightquote’s terms and conditions. Like the enrollment e-mail, the hyperlink was located under
Freightquote’s contact information and did not instruct Amcad to view or agree to the terms and
conditions. When booking externally through the website, however, Amcad could not complete
the order without checking the box next to the text “[t]he customer has read and agreed to the terms
& conditions” and then selecting “book this shipment.” In contrast, internal orders placed on the
telephone did not require Amcad’s agreement to Freightquote’s terms and conditions before
booking.
The order at issue here was for the shipment of a 12-foot Laminator Table and Flatbed
Applicator (CWT Table) to an Amcad client in Mexico. On December 23, 2016, Amcad scheduled
the shipment internally through a telephone order with Freightquote. After placing the order,
Amcad received two e-mails from Freightquote. The first confirmed the order, provided the
shipment number, stated that Freightquote would contact the carrier and schedule the shipment,
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and included the blue hyperlink to Freightquote’s terms and conditions. The second automated e-
mail attached a bill of lading for the shipment and stated that RGV Logistics Carriers LLC had
been assigned to move the load. The bill of lading included the following at the bottom of the
page (redacted):
The bill of lading designated Amcad as “Shipper,” RGV Logistics as “Carrier,” and Amcad’s
customer as “Consignee.” The terms “Customer” and “Organization” were undefined.
When the CWT Table did not arrive as scheduled, Amcad investigated and discovered that
the shipment was not delivered because it had been off-loaded and abandoned outside of a trailer
repair shop. Amcad sued Freightquote and RGV Logistics after Amcad’s attempts to resolve the
matter with Freightquote failed. Freightquote moved to dismiss the underlying proceeding based
on a forum-selection clause available on Freightquote’s website. The forum-selection clause
designated specific Missouri courts as the chosen forum for certain disputes:
Freightquote maintains that Amcad agreed to the forum-selection and choice-of-law
provision by accepting Freightquote’s terms and conditions when it placed the six orders booked
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online, and by signing prior bills of lading that included the language above the signature lines that
“Customer agrees to the organization’s terms and conditions, which can be found at
www.freightpaycenter.com.” Freightquote also argues that the general placement of hyperlinks to
the terms and conditions in its confirmation e-mails to Amcad establish a course of dealing
showing Amcad’s agreement to Freightquote’s terms and conditions. Freightquote asserts that the
trial court should have granted its motion to dismiss because of Amcad’s alleged agreement to the
terms and conditions and, therefore, the forum-selection clause.
Amcad maintains, however, that the forum-selection clause was not part of the agreement
for this shipment because the bill of lading did not specifically show an intent to incorporate the
terms and conditions by reference. Amcad asserts that the language above the signature lines did
not reference or incorporate Freightquote’s terms and conditions and did not state that Amcad, the
shipper, agreed to the terms and conditions. Rather, Amcad argues that the statement above the
Shipper’s signature line references “the Organization’s” terms and conditions and directs the
“Customer” to a website that is not Freightquote.com. Neither “Organization” nor “Customer” are
defined in the bill of lading, and Amcad is designated as the “Shipper.” As such, Amcad maintains
that the bill of lading is ambiguous as to whose terms and conditions are referenced and what entity
agreed to those terms and conditions.
The trial court denied Freightquote’s motion to dismiss, and this original proceeding
followed. Amcad filed a response to Freightquote’s petition at our request, and Freightquote filed
a reply. After reviewing the briefs and the record, we conclude Freightquote is not entitled to
mandamus relief.
Standard of Review
Mandamus relief is available to enforce forum-selection agreements because there is no
adequate remedy by appeal when a trial court abuses its discretion by refusing to enforce a valid
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forum-selection clause that covers the dispute. In re Int’l Profit Assocs., Inc., 274 S.W.3d 672,
675 (Tex. 2009). When the standard of review is abuse of discretion, “[c]lose calls go to the trial
court.” Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex. App.—Dallas 2007, pet.
denied).
We review the trial court’s decision whether to enforce a forum-selection clause for an
abuse of discretion, deferring to the trial court’s factual determinations if they are supported by the
evidence, but we review the trial court’s legal determinations de novo. In re Int’l Profit Assocs.,
274 S.W.3d at 675; see In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig.
proceeding). As there were no findings of fact or conclusions of law here, we infer that the trial
court made all fact findings that have support in the record and are necessary to uphold the ruling.
Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007).
Applicable Law
Forum-selection clauses provide parties with an opportunity to contractually preselect the
jurisdiction for dispute resolution. Pinto Tech. Ventures, L.P. v. Sheldon, 526 S.W.3d 428, 436
(Tex. 2017) (citing In re AIU Ins. Co., 148 S.W.3d 109, 111 (Tex. 2004) (orig. proceeding)).
Forum-selection clauses are generally enforceable, and a party attempting to show that such a
clause should not be enforced bears a heavy burden. In re Lyon Fin. Servs., Inc., 257 S.W.3d 228,
232 (Tex. 2008) (per curiam) (citing In re AIU Ins. Co., 148 S.W.3d at 113). Failing to give effect
to contractual forum-selection clauses and forcing a party to litigate in a forum other than the
contractually chosen one amounts to “clear harassment” that injects “inefficiency by enabling
forum-shopping, wasting judicial resources, delaying adjudication on the merits, and skewing
settlement dynamics . . .” In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010) (orig.
proceeding) (quoting In re AutoNation, Inc., 228 S.W.3d 663, 667–68 (Tex. 2007) (orig.
proceeding)).
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When construing a contract, our primary goal is to determine the parties’ intent as
expressed in the terms of the contract. Bob Montgomery Chevrolet, Inc. v. Dent Zone Cos., 409
S.W.3d 181, 189 (Tex. App.—Dallas 2013, no pet.) (citing 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 the parties’ contract by referring in the
signed document to the unsigned document. Id. (citing 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 document “plainly refers” to the incorporated document. Id. (quoting Owen, 433
S.W.2d at 167); In re C & H News Co., 133 S.W.3d 642, 645 (Tex. App.—Corpus Christi-
Edinburg 2003, orig. proceeding). Documents 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). When a document is incorporated into another by reference, both instruments must be
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 mentioning the document.” Dent Zone Cos., 409 S.W.3d
at 189. “The language in the signed document must show the parties intended for the other
document to become part of the agreement.” Id.
Discussion
Amcad maintains that the forum-selection clause was not part of the contract for the
December 23, 2016 shipment because the bill of lading did not specifically show an intent to
incorporate Freightquote’s terms and conditions by reference, and the evidence did not show a
course of dealing under which Amcad could be found to have agreed to the forum-selection clause
for purposes of that shipment.
We find this Court’s opinion in Bob Montgomery Chevrolet, Inc. v. Dent Zone Companies
instructive. In Dent Zone, this Court considered whether an application to become a certified
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repair center for Dent Zone incorporated by reference terms and conditions found on Dent Zone’s
website such that the applicant, Bob Montgomery Chevrolet, was bound by those terms and
conditions, including a forum-selection clause. 409 S.W.3d at 184–85. The signed application
stated Bob Montgomery Chevrolet would “become a ‘Certified Repair Center’ as detailed in our
PDR LINX Service Program,” and would “be an independent contractor working within the PDR
LINX Service Program.” Id. at 190. The application also stated, “Additional benefits,
qualifications and details of the PDR LINX Service Program are available for your review at our
website: http://www.linxmanager.com/pdf/CRCTermsConditions.pdf.” Id. at 190. The website
consisted of a two-page document (the internet document) listing terms and conditions for the PDR
Linx Service Program agreement, including what Dent Zone asserted was a minimum six-month
contractual term, a choice-of-law provision making Texas law applicable to the agreement, and a
forum-selection clause stating that any suit between the parties would be heard in Dallas County,
Texas. Id. at 185. Dent Zone maintained that the above-quoted sentence incorporated the internet
document by reference and, as such, bound Bob Montgomery Chevrolet to those terms and
conditions, including the forum-selection clause. Id. at 188–89. Bob Montgomery Chevrolet
asserted the internet document was not part of the contract. Id.
This Court agreed with the dealership, concluding the terms and conditions were not part
of the contract because the referring language did not meet the standards for incorporation by
reference:
The language, “Additional benefits, qualifications and details of the PDR LINX
Service program are available for your review at our website: http://www.linx
manager.com/pdf/CRCTermsConditions.pdf” does not state the internet document
is incorporated by reference into the parties’ agreement, does not plainly refer to
additional terms and conditions in the internet document as becoming part of the
parties’ agreement, and does not otherwise suggest that the parties intended for the
internet document to become part of their agreement. Instead, this language
indicates that the internet document contained informative material only, not
binding terms and conditions intended to be part of the parties’ contract.
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Id. at 190. Although the referring language in Dent Zone is not identical to the language in the bill
of lading at issue here, we find Dent Zone persuasive.
Like the agreement in Dent Zone, the four corners of the bill of lading do not include a
forum-selection clause, and the statement on the bill of lading regarding terms and conditions on
the website does not state that any forum-selection clause, let alone Freightquote’s purported terms
and conditions, are incorporated by reference into the agreement for the December 23 shipment.
The language in the bill of lading does not specifically define who the Customer and Organization
are and, as such, the bill of lading does not show an agreement by Amcad to the referenced terms
and conditions. Furthermore, the language cites to a website, www.freightpaycenter.com, that
does not plainly refer to Freightquote or its website. Although much of the dissent’s argument is
premised on the view that Freightquote’s terms and conditions were available at
www.freightpaycenter.com, we have found no uncontroverted evidence in this record that the
terms and conditions were actually available there. Freightquote included its terms and conditions
as Exhibit F to its motion to dismiss, but the exhibit does not reference any website or show the
origin of the printed exhibit. The only reference to a “.com” is in the company’s name in the first
sentence of the exhibit––“Freightquote.com, Inc.” Exhibit F was proven up by the affidavit of
George Meier, but his affidavit does not state that the terms and conditions were available at
www.freightpaycenter.com. Rather, he simply states what “Section 5 of the Terms and
Conditions” provides. Meier also misstated in his affidavit what the bill of lading said regarding
the terms and conditions. In paragraph 14, Meier stated that:
But the bill of lading’s actual language was:
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And as we have noted before, the terms “Customer” and “Organization” are undefined. The record
does not support a determination that Freightquote’s terms and conditions were incorporated by
reference in the bill of lading or that Amcad agreed to Freightquote’s terms and conditions for this
shipment. Indeed, the mandamus record includes no evidence that Amcad was required to agree
to Freightquote’s terms and conditions when it enrolled as a customer or when it booked the
shipment at issue.
We conclude the referring language is ambiguous as to who agreed to which Organization’s
terms and conditions and does not unambiguously incorporate by reference Freightquote’s terms
and conditions. Freightquote cites no binding authority or uncontroverted evidence that would
require the trial court to find that the forum-selection clause was incorporated into the contract
here, either by reference or course of dealing. Authorities cited by Amcad, the record evidence,
and the bill of lading itself, however, support Amcad’s contention that the forum-selection clause
was not part of this contract.
Under this record, we conclude Freightquote has not established that the trial court clearly
abused its discretion by denying Freightquote’s motion to dismiss. Accordingly, we deny the
petition for writ of mandamus.1
/Lana Myers/
LANA MYERS
JUSTICE
Whitehill, J., dissenting
181028F.P05
1
Amcad also argued below that any alleged forum-selection clause would be unenforceable here because the Carmack Amendment controls
venue here. See 49 U.S.C. § 14706(d)(1)–(2). We express no opinion on the applicability of the Carmack Amendment.
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