Mandamus Shield: Challenging Unsigned Forum-Selection Clauses and Jurisdictional Discovery ‘Fishing’ in International Disputes
In re Mattr US Inc., 11-25-00089-CV, February 20, 2026.
On appeal from the 118th District Court of Howard County.
Synopsis
The Eleventh Court of Appeals denied mandamus relief, holding that a trial court does not abuse its discretion by refusing to enforce a forum-selection clause contained in unsigned “Order Acknowledgments” where the documents expressly contemplated a signature as the mode of acceptance. Furthermore, the court upheld the denial of discovery into internal financial authorizations (AFEs), finding such internal documents irrelevant to the objective manifestations of contract formation.
Relevance to Family Law
For the Texas family law practitioner, this case serves as a critical reminder that “standard terms and conditions” referenced in extrinsic documents—such as those involving family offices, closely-held business entities, or international asset management agreements—are not self-executing. When a spouse attempts to move a property or custody dispute to a foreign jurisdiction based on an unsigned agreement or a “course of dealing,” In re Mattr US Inc. provides the blueprint for resisting such efforts. It underscores that if a document specifies a signature as the method of acknowledgment, the absence of that signature is often fatal to the enforcement of a forum-selection clause, regardless of the parties’ ongoing business relationship.
Case Summary
Fact Summary
SM Energy Company sued Flexpipe (a Canadian entity) in Howard County, Texas, alleging the delivery of defective composite pipe. Flexpipe moved to dismiss based on a forum-selection clause designating Alberta, Canada, as the exclusive jurisdiction. Flexpipe’s argument rested on approximately 156 “Order Acknowledgments” (OAs) sent over a ten-year period. These OAs contained a signature block stating that “by signing below,” the buyer acknowledged the accuracy of the order and agreed to Flexpipe’s general terms and conditions. The forum-selection clause was buried in the nineteenth provision of these terms, printed in small, uniform font on the reverse side of the OAs.
Critically, SM Energy never signed any of the OAs. Flexpipe argued that because SM Energy accepted the goods and occasionally sought credits under the OAs’ return policies, they were contractually bound by the “fine print” terms, including the Alberta forum-selection clause. To prove this “acceptance by conduct,” Flexpipe sought discovery of SM Energy’s internal “Authorizations for Expenditures” (AFEs) and internal cost estimates, theorizing that these documents would reveal SM Energy’s internal approval of the OAs’ terms. The trial court denied both the motion to dismiss and the motion to compel discovery.
Issues Decided
The court addressed two primary issues: first, whether the trial court abused its discretion by refusing to enforce a forum-selection clause in a series of unsigned documents; and second, whether the trial court abused its discretion by shielding internal corporate financial documents from discovery during a jurisdictional dispute.
Rules Applied
The court applied the well-established mandamus standard under In re Prudential Ins. Co. of Am., requiring a showing of a clear abuse of discretion and no adequate remedy by appeal. While the refusal to enforce a valid forum-selection clause generally lacks an adequate appellate remedy, the relator must first prove the clause is part of a binding agreement.
Under Texas contract law, the court noted that while a signature is not always required for a contract to be binding, if the parties move to contract in a way that expressly requires a signature, the failure to sign indicates a lack of mutual assent. The court also looked to the Texas Business and Commerce Code regarding the “battle of the forms” and the standard for “conspicuousness” in contract terms, although it focused primarily on the threshold issue of whether an agreement was formed at all. Regarding discovery, the court applied the “fishing expedition” prohibition, holding that discovery must be reasonably calculated to lead to the discovery of admissible evidence regarding the specific dispute at hand—here, the objective manifestation of contract acceptance.
Application
The court’s legal narrative focused on the specific language Flexpipe chose for its own forms. Because the OAs explicitly stated that the buyer agreed to the terms “by signing below,” the court reasoned that Flexpipe had defined the exclusive method of acceptance. Since SM Energy never signed, the “General Terms and Conditions” (including the forum-selection clause) never became part of the contract as a matter of law. The court was unpersuaded by Flexpipe’s “course of dealing” argument, noting that while the parties had a long-standing relationship, the mere receipt of unsigned forms does not automatically incorporate onerous “fine print” provisions that were not conspicuously brought to the buyer’s attention.
Regarding the discovery of the AFEs, the court highlighted the distinction between internal budgeting and external communication. Because contract formation depends on objective manifestations of intent—what the parties said and did to each other—SM Energy’s internal financial planning documents were irrelevant. The AFEs were prepared for internal funding purposes and did not mention Flexpipe or the OAs. Therefore, forcing their production would constitute an impermissible fishing expedition into irrelevant financial data.
Holding
The trial court did not clearly abuse its discretion in denying the motion to dismiss because the Relators failed to establish that the unsigned forum-selection clause was a binding component of the parties’ agreement. The court emphasized that when a party’s own form conditions acceptance on a signature, the absence of that signature creates a heavy burden to prove assent through other means, which was not met here.
The trial court did not clearly abuse its discretion in denying the motion to compel discovery of the AFEs and internal cost estimates. The court held that internal financial documents that were never shared with the opposing party are not relevant to the legal determination of whether a contract was formed by objective manifestation of assent.
Practical Application
This holding is a powerful tool for family law litigators dealing with complex property divisions involving out-of-state or international entities. When a spouse attempts to enforce a forum-selection clause found in “standard” participation agreements, joinders to partnership agreements, or investment disclosures, practitioners should immediately look for signature requirements. If the document specifies a signature as the mode of acceptance and that signature is missing, the clause may be unenforceable despite years of “course of dealing.” Additionally, this case provides a shield against overbroad discovery requests seeking internal “planning” or “budgeting” documents to prove a party’s “knowledge” of certain terms, as the court clarifies that internal intent is secondary to objective communication.
Checklists
Challenging an Unsigned Forum-Selection Clause
- Analyze the Acknowledgment Language: Determine if the document contains a signature block or language stating “by signing below” or “acceptance is conditioned upon return of a signed copy.”
- Audit the Course of Dealing: Identify whether your client ever affirmatively manifested assent to the specific “fine print” or if they merely accepted the primary benefits of the transaction (e.g., accepting a distribution vs. agreeing to a Swiss forum).
- Evaluate Conspicuousness: Check if the forum-selection clause is buried in uniform, small font without bolding, underlining, or distinct headings (though not always dispositive, it supports a lack of mutual assent).
- Distinguish “Battle of the Forms”: If the dispute involves a “purchase order” vs. an “order acknowledgment,” determine which document was the “offer” and which was the “acceptance” under the UCC.
Defending Against Jurisdictional Discovery
- Object to Internal “Planning” Docs: Argue that internal AFEs, budgets, or cost-estimates are irrelevant to contract formation because they are not objective manifestations of intent.
- Review Communication Logs: Ensure all produced discovery focuses on external communications between the parties, rather than private, internal deliberations.
- Assert “Fishing Expedition” Protections: Use the Mattr US Inc. holding to argue that discovery into a party’s internal financial software or budgeting process is not “reasonably calculated” to prove whether a specific forum-selection clause was agreed upon.
Citation
In re Mattr US Inc.; Shawcor, Inc.; Flexpipe Systems (US) LLC; and Shawcor Composite Production Systems, __ S.W.3d __ (Tex. App.—Eastland 2026, orig. proceeding) (No. 11-25-00089-CV).
Full Opinion
Family Law Crossover
In the context of a high-net-worth divorce, this ruling can be weaponized to keep litigation in a favorable Texas forum. For example, if a spouse owns an interest in a private equity fund or a family office based in a jurisdiction like Delaware or the Cayman Islands, the governing documents often contain strict forum-selection clauses. If the “joinder” or “subscription agreement” was never properly executed, or if the clause is located in an unsigned “Standard Terms” supplement, you can use In re Mattr US Inc. to argue that Texas retains jurisdiction over the characterization and division of those assets.
Furthermore, during the discovery phase of a divorce, one spouse often tries to dig into the other’s internal financial spreadsheets or “AFE-style” business plans to prove they “understood” or “accepted” certain separate property designations or contractual obligations. This case provides the authority to shut down that discovery by arguing that a party’s internal, uncommunicated thoughts and budgets are legally irrelevant to the formation of a contract.
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