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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