2019 WL 995791
SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.
Court of Appeals of Texas, Dallas.
IN RE FREIGHTQUOTE.COM, Relator
No. 05-18-01028-CV
|
Denied and Opinion Filed March 1, 2019
Original Proceeding from the 95th District Court, Dallas County, Texas, Trial Court Cause No. DC-18-01862-D
Attorneys and Law Firms
Michael Calvin Wright, John J. Reenan, for Relator Freightquote.com.
Vickie S. Brandt, Eric D. Fein, for Real party in interest Amcad Enterprises, L.P.
Before Justices Myers, Whitehill, and Carlyle
MEMORANDUM OPINION
Opinion by Justice Myers
*1 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.
*2 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, 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 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 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).
*3 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) ).
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.
*4 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 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.linxmanager.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.
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:
*5 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
Whitehill, J., dissenting
BILL WHITEHILL JUSTICE, Dissenting
I respectfully dissent from the majority opinion because the undisputed facts and controlling law permit only one conclusion: The parties unambiguously agreed to a contract which incorporated by reference a valid forum selection clause requiring that this dispute be tried in Missouri. Therefore, the trial court 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 immediately below the words “CUSTOMER AGREES TO THE ORGANIZATION’S TERMS AND CONDITIONS, WHICH CAN BE FOUND AT WWW.FREIGHTPAYCENTER.COM” incorporated by reference the terms and conditions found at that location. The answer to that question based on accepted contract law principles and our facts is “yes.”
Accordingly, we should conditionally grant the petition and direct the district court to dismiss the case against Freightquote.com without prejudice.
II. Controlling Facts
The controlling facts are straightforward and undisputed:
1. Freightquote.com “is an online transportation broker of freight services operating throughout North America.” “FreightQuote markets its services through the internet and bases its broker services on technology it developed for customers to compare 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 those two parties.
4. The parties’ contract here is a bill of lading.1
5. AMCAD had 134 similar contracts with Freightquote.com before this one. Each one relied on a website link to direct AMCAD to the terms and conditions applicable to that transaction.
*6 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 “Freightquote.com’s Terms and Conditions.”
8. That same email also (i) attached a bill of lading for the shipment and (ii) directed AMCAD to have the bill of lading ready to present to the driver at pickup.
9. AMCAD signed the bill of lading.
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 therein to be “Freightquote.com, Inc.®” and its corporate affiliates.
13. They also (i) define the word “Customer” to be “The enrolled Customer, 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 Customer:
These TERMS AND CONDITIONS shall apply to all shipments scheduled by Customer, unless and until these TERMS AND CONDITIONS are altered 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 and 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 broker only.
17. Finally, the terms and conditions state policies and procedures for handling claims between the Company and the Customer. AMCAD’s petition states that “AMCAD cooperated with FreightQuote and followed FreightQuote’s claim procedures” relevant to this dispute.
III. Analysis
Texas law requires Texas courts to enforce valid forum selection clauses that encompass disputes before those courts.
That a contract existed between AMCAD and Freightquote.com is certain: AMCAD sued Freightquote.com for contract breach. There is only one contract between those parties at issue here. AMCAD obviously knows who the contracting parties are. AMCAD’s signature on that contract is not disputed. That contract says AMCAD agreed to the “Organization’s” terms and conditions found at a specific website. Freightquote.com is the only organization that the word “Organization” in this context could logically refer to. The contract identifies only one website to engage for reading the applicable terms and conditions.
The terms and conditions found at the designated website contain a forum selection clause, which mandates that covered disputes be brought in specific Missouri courts. This dispute is within that clause’s scope. No evidence in this record could support a finding that (i) the clause imposes an impermissible burden on AMCAD, (ii) AMCAD was defrauded into agreeing to that clause, or (iii) any other recognized ground exists for avoiding the clause.
*7 Accordingly, the trial court clearly abused its discretion by refusing to enforce that clause in this case.
A. Applicable Law
We stated in Bob Montgomery Chevrolet, Inc. v. Dent Zone Companies that:
When construing a contract, our primary goal is to determine the 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 the parties’ contract by referring in the signed document to the unsigned document. 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.; In re C & H News Co., 133 S.W.3d 642, 645 (Tex. App.—Corpus Christi 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. See Trico Marine Servs., Inc. v. Stewart & Stevenson Technical Servs., Inc., 73 S.W.3d 545, 549–50 (Tex. App.—Houston [1st Dist.] 2002, mandamus denied). The language in the signed document must show the parties 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 the validity of terms incorporated by reference, it must be clear that the parties 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 effective, 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 were 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.—Houston [14th Dist.] 2015, no pet.) (“[T]here is no requirement that the incorporated document containing the arbitration clause must 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 physical document. See, e.g., One Beacon Ins. Co. v. Crowley Marine Servs., Inc., 648 F.3d 258, 269 (5th Cir. 2011) (“[U]nder admiralty law—which generally follows the common law of contracts in resolving 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 documents.”); 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 traditional contract law to find terms and conditions located on a company’s website to be incorporated into a contract where they were clearly referred to and could be easily located by the challenging party, especially where that party is a commercial entity.”); Burcham v. Expedia, Inc., No. 4:07CV1963 CDP, 2009 WL 586513, at *2 (E.D. Mo. Mar. 6, 2009) (“A customer on notice of contract terms 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 assertions that the [forum selection] clause should be disregarded because the Purchase Order incorporated 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 accessibility of the Internet, companies are turning to posting their general terms and conditions online and incorporating them into a physical document by reference to the Internet site where they are located. Some courts are accepting that practice.”). We should adopt this rule.
B. Application to Facts
*8 The undisputed mandamus record establishes that AMCAD contacted Freightquote.com to arrange for shipping AMCAD’s goods to AMCAD’s customer. That contact resulted in a bill of lading contract between AMCAD and Freightquote.com for that purpose. That bill of lading is the contract on which AMCAD bases its contract breach claims against Freightquote.com. And it is that same contract that created the relationship on which AMCAD bases its tort claims against Freightquote.com.
The bill of lading plainly (i) refers to the additional terms and conditions and (ii) tells AMCAD where to find them. The contract also plainly expresses AMCAD’s unmistakable agreement to those terms and conditions.
Not only does the record establish that AMCAD agreed to the terms and conditions, but the record also establishes that Freightquote.com is the contract’s counter-party. Given that there is only one bill of lading involved in this case in which Freightquote.com is the defendant and that Freightquote.com sent that bill of lading to AMCAD, the only logical conclusion is that the word “Organization” in this context refers to only Freightquote.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 and 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 having to engage a website to find the applicable terms and conditions; it was doing business 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 specific bill of lading in this case. That it successfully completed six prior entirely web-based transactions with Freightquote.com proves AMCAD’s ability to successfully navigate that platform.
And AMCAD could not have missed the reference to the website link to the terms and conditions—AMCAD’s signature agreeing to be bound by them appears right below the reference to those terms and conditions and the website link.
Nor can AMCAD reasonably argue that the web-link reference to “Freightpaycenter.com” somehow misled AMCAD and nullifies AMCAD’s agreement to the terms and conditions found by following the link. The relevant terms and conditions could have resided on any website with any name and any web-address so long as Freightquote.com gave AMCAD the correct address to get to that website. It did.
There was only one link and only one website specified for AMCAD 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 agreed to be bound by a set of terms and conditions contained in a specific folder located on a specific desk in a specific AMCAD office.
AMCAD does not deny that its claims and litigation against Freightquote.com fall within the forum selection clause’s scope if the parties’ contract includes that clause.
As discussed above, it matters not that the terms and conditions were not physically attached to the bill of lading or were on a website.
*9 Because the only logical conclusion is that the parties’ contract incorporated by reference the terms and conditions found on the specified website, the trial court abused its discretion by refusing to enforce the forum selection clause included in those 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 the parties agreed to the terms and conditions written on the website. Instead, in that case we wrote:
We conclude the referring language in this case, “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,” does not indicate the parties intended to incorporate the internet document. Instead, the 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 in the present case plainly states 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. Instead, we should follow Dent Zone’s general principles quoted above.
D. Conclusion
Although allowed sparingly and as an extraordinary remedy, mandamus relief exists to remedy situations where a trial court clearly abuses its discretion and the relator has no adequate appellate remedy, such as where a trial court declines to enforce a valid forum selection clause covering a dispute before it.
The record here conclusively establishes that (i) the parties plainly agreed to governing, written terms and conditions residing at a specific and readily accessible website; (ii) those terms and conditions contain a valid forum selection clause requiring that certain disputes be litigated in designated Missouri courts; and (iii) the parties’ present dispute falls within that clause’s scope. That being so, existing Texas law requires our courts to respect and enforce the parties’ contract. Because the trial court declined to so, mandamus relief is proper 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 court does not do so within fifteen days.
All Citations
Not Reported in S.W. Rptr., 2019 WL 995791
Footnotes
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.
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.—Dallas July 19, 2004, no pet),(citing Se. Pac. Transp. Co. v. Coml. Metals Co., 456 U.S. 336, 342 (1982) ).
