C&A Truck Brokerage, Inc. v. National Fresh Express, Inc.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
C&A Truck Brokerage, Inc.,
Plaintiff,
v.
National Fresh Express, Inc.,
Defendant.
§
§
§
§
§
§
§
Civil Action H-25-3420
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
Pending before the court is Plaintiff’s Motion for Partial
Summary Judgment. ECF No. 18. The court has considered the
parties’ briefing, the evidence, and the applicable law. For the
reasons stated below, Plaintiff’s Motion for Partial Summary
Judgment, ECF No. 18, is GRANTED.
1. Background and Procedural History
In December 2024, C&A Truck Brokerage, Inc. (C&A) and
National Fresh Express, Inc. (NFE) entered into a Broker–Carrier
Agreement (Agreement). ECF No. 18-2. Pursuant to the
Agreement, C&A was to broker shipments for NFE, which would
“undertake all reasonable efforts to transport and deliver all
shipments in good condition, with reasonable dispatch, and in
accord with any special requirements of shipper . . . .” Id. ¶ 3(A).
For each shipment that NFE received under the Agreement, NFE
was required to issue a bill of lading, in compliance with federal
law. Id. ¶ 3(B)(i).
At issue in this case is an April 2025 shipment of
temperature-sensitive strawberries, brokered under the terms of
the Agreement. Guzman Aff., ECF No. 18-1, ¶ 4. The strawberries
were loaded onto NFE’s truck in California. ECF No. 19 at 3. As it
was required to do under the Agreement, NFE signed a bill of
United States District Court
Southern District of Texas
ENTERED
July 13, 2026
Nathan Ochsner, Clerk
Case 4:25-cv-03420 Document 23 Filed 07/13/26 in TXSD Page 1 of 9

2
lading for the shipment (the Bill of Lading). ECF No. 18-7. The Bill
of Lading includes information about the shipment, including the
quantity of strawberries being shipped, the parties involved in the
shipment, and the start and end time of loading. Id. It also includes
information pertaining to the temperature of the shipment. Id. In
bold text, the Bill of Lading states:
Temperature range to be maintained: 32°F to 34°F
Reefer Temp/Run Setting: 32°F Continuous.1
Id. Two days later, when NFE attempted to deliver the shipment,
the strawberries were rejected due to elevated temperature. ECF
No. 18 ¶ 10 (citing Guzman Aff. ¶ 6).
C&A paid the customer $44,967.90 as consideration for
release from the customer’s “claims, demands, causes of action,
damages, and expenses” arising from the shipment of damaged
strawberries. ECF No. 18-4. Sometime later, C&A and NFE
determined that the strawberries’ elevated temperature was
caused by NFE’s failure to run the reefer at a continuous
temperature setting. ECF No. 18 ¶ 1; Reefer Download Data, ECF
No. 18-5.
C&A sued NFE in June 2025, seeking to recover the
$44,967.90 that it had paid to the customer for the spoiled
shipment of strawberries. ECF No. 1-1. C&A brought a claim for
breach of contract as well as a claim under the Carmack
Amendment, 49 U.S.C. § 14706. Id. C&A now seeks summary
judgment on its breach of contract claim. ECF No. 18.
NFE admits that it failed to run the reefer at the continuous
temperature setting throughout transport. Def.’s Resps. to Pl.’s
First Reqs. for Admis., ECF No. 18-8 at 3–4; ECF No. 19. However,
1 According to the Affidavit of C&A’s Office Manager, “‘Reefer’ is an abbreviated name
and industry term for the refrigeration unit on the trailer. The continuous setting is
a setting on the reefer that keeps the temperature at a more consistent temperature,
compared to the alternative cycle-sentry setting.” Guzman Aff. ¶ 4.
Case 4:25-cv-03420 Document 23 Filed 07/13/26 in TXSD Page 2 of 9

3
NFE argues that it is not liable for breach of contract because the
contract terms that it breached are ambiguous. ECF No. 19 ¶ 1.
Specifically, NFE argues that the court should not grant summary
judgment because there is as a question as to whether the Bill of
Lading’s temperature instructions are part of the parties’
Agreement. ECF No. 19 at 1, 4.
2. The Terms of the Agreement
Under the parties’ Agreement, NFE promised to transport
property “subject to the terms of th[e] Agreement and the
Customer’s requirements.” ECF No. 18-2 ¶ 1(B). NFE agreed “to
transport and deliver all shipments in good condition . . . and in
accord with any special requirements of shipper, or as otherwise
agreed in writing.” Id. ¶ 3(A).
The Agreement contains a section titled “Bills of Lading,”
which provides that NFE “shall issue a bill of lading” for the freight
that it transports pursuant to the Agreement. ECF No. 18-2
¶ 3(B)(i). It states that once NFE takes possession of a shipment of
freight, it “become[s] fully responsible/liable for the freight . . . .”
Id. Additionally, the Agreement provides that any bill of lading
“shall serve only as a receipt for the goods,” and that “no other
provision of a Bill of Lading’s terms and conditions shall
apply . . . provided however that the Bill of Lading may also
contain instructions or specifications of the Shipper or
Consignor pertaining to the transportation of goods covered by the
Bill of Lading[,] which [NFE] agrees to follow or perform by
issuing its Bill of Lading.” Id. ¶ 3(B)(ii)) (emphasis added).
In a section pertaining to “[p]erishables, food products, and
produce,” the Agreement also provides that NFE “shall comply
with all of [C&A’s] and Shipper’s instructions as to temperature
and transportation requirements, including, but not limited to
continuous temperature setting.” ECF No 18-2¶ 3(L)(i). It states
Case 4:25-cv-03420 Document 23 Filed 07/13/26 in TXSD Page 3 of 9

4
that “[i]n the event [NFE] fails to comply with the terms of the
Section and the cargo is lost, damaged, or otherwise rejected for
any reason, [NFE] shall be liable for the full value of the load.” Id.
The Agreement also contains a merger clause. ECF No. 18-2
¶ 4(K) (stating that the Agreement represents the “entire
understanding” between the parties). The merger clause bars the
introduction of extrinsic evidence “to reform” the Agreement, and
states that “[i]f there is any discrepancy or conflict between th[e]
Agreement and any terms contained in any other document(s) . . . ,
the provision [in the Agreement] shall control . . . .” Id.
3. Summary Judgment Standard
“Summary judgment is appropriate only if, viewing the
evidence in the light most favorable to the nonmovant, ‘the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.’” Davenport
v. Edward D. Jones & Co., 891 F.3d 162, 167 (5th Cir. 2018)
(quoting Fed. R. Civ. P. 56(a)). No genuine issue of material fact
exists if a rational jury could not find for the nonmoving party
based on the complete record. McMichael v. Transocean Offshore
Deepwater Drilling, Inc., 934 F.3d 447, 455 (5th Cir. 2019) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)).
Initially, “[t]he movant bears the burden of identifying those
portions of the record it believes demonstrate the absence of a
genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401
F.3d 347, 349 (5th Cir. 2005) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322–25 (1986)). If this burden is met, the nonmovant
must then “go beyond the pleadings,” using competent summary
judgment evidence to cite “specific facts” showing a genuine issue
for trial. McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 357
Case 4:25-cv-03420 Document 23 Filed 07/13/26 in TXSD Page 4 of 9

5
(5th Cir. 2017) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d
536, 540 (5th Cir. 2005)).
The court reviews all evidence and reasonable inferences in
the light most favorable to the nonmoving party. See Tolan v.
Cotton, 572 U.S. 650, 657 (2014) (quoting Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970)). The court, however, does not have
a duty “to search the record for material fact issues.” RSR Corp. v.
Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010) (“Rather, the party
opposing the summary judgment is required to identify specific
evidence in the record and to articulate precisely how this evidence
supports [the] claim.”). Although the court needs to consider only
the cited evidence, it is allowed to consider other materials in the
summary judgment record. Fed. R. Civ. P. 56(c)(3).
4. Breach of Contract
Under Texas law, the elements of a breach of contract claim
are (1) “the existence of a valid contract,” (2) “performance or
tendered performance by the plaintiff,” (3) “breach of the contract
by the defendant,” and (4) “damages sustained [by the plaintiff] as
a result of the breach.” Innova Hosp. San Antonio, LP v. Blue Cross
& Blue Shield of Ga., 892 F.3d 719, 731 (5th Cir. 2018) (citation
omitted).
It is undisputed that NFE and C&A entered into the
Agreement. It is also undisputed that C&A performed under the
Agreement. It brokered the strawberry shipment for NFE.
Additionally, it is undisputed that NFE’s admitted failure to run
the reefer at a continuous setting led to the purchaser’s rejection
of the shipment, and that C&A suffered damages as a result.
Therefore, only the first and third elements—the validity of the
contract, and whether NFE breached the contract—are at issue.
Case 4:25-cv-03420 Document 23 Filed 07/13/26 in TXSD Page 5 of 9

6
The parties dispute the scope of the Agreement. Specifically,
they disagree about whether the Bill of Lading’s instruction to run
the reefer at a continuous setting was incorporated by reference
into the Agreement. NFE asserts that under the Agreement, it is
not sufficiently clear whether NFE sought to bind itself to any bills
of lading. ECF No. 19 at 5, 7. C&A, on the other hand, argues that
the terms of the Agreement demonstrate the parties’ express
intent to referentially incorporate instructions from bills of lading,
including the reefer-setting instruction at issue here. ECF No. 20
at 1–2. Because the reefer-setting instruction is thus a term of the
Agreement, C&A argues, NFE’s admitted failure to adhere to that
instruction constitutes a breach of the Agreement. Id. at 2, 6.
When presented with a question of contract interpretation,
the court looks first to the language of the parties’ agreement.
Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d 471,
479 (Tex. 2019). “A contract’s plain language controls, not ‘what
one side or the other alleges they intended to say but did not.’”
Maxey v. Maxey, 617 S.W.3d 207, 219 (Tex. App.—Houston [14th
Dist.] 2020, no pet.) (quoting Great Am. Ins. Co. v. Primo, 512
S.W.3d 890, 893 (Tex. 2017)).
Terms that are incorporated by reference into a contract
generally become part of that contract. In re 24R, Inc., 324 S.W.3d
564, 567 (Tex. 2010). An incorporation by reference is “valid so long
as it is ‘clear that the parties to the agreement had knowledge of
and assented to the incorporated terms.’” One Beacon Ins. Co. v.
Crowley Marine Servs., Inc., 648 F.3d 258, 268 (5th Cir. 2011)
(quoting 11 Williston on Contracts § 30:25). Under Texas law, even
an unsigned document may be incorporated by reference “provided
[that] the document signed by the defendant plainly refers to
another writing.” Owen v. Hendricks, 433 S.W.2d 164, 166 (Tex.
1968). To incorporate a document by reference, “the specific
language used is not important,” but the “language in the signed
Case 4:25-cv-03420 Document 23 Filed 07/13/26 in TXSD Page 6 of 9

7
document must show the parties intended for the other document
to become part of the agreement.” Sierra Frac Sand, L.L.C. v. CDE
Glob. Ltd., 960 F.3d 200, 203 (5th Cir. 2020) (quoting Bob
Montgomery Chevrolet, Inc. v. Dent Zone Cos., 409 S.W.3d 181, 189
(Tex. App.—Dallas 2013, no pet.)).
The plain terms of the Agreement show that NFE intended
to bind itself to the Bill of Lading’s instructions. The Agreement
specifically provides that NFE was required to issue a bill of lading
for each shipment of freight transported under the Agreement.
ECF No. 18-2 ¶ 3(B)(i). By issuing a bill of lading, “[NFE] agree[d]
to follow or perform” the Shipper’s “instructions or specifications”
contained therein. Id. ¶ 3(B)(ii). For produce shipments, NFE
specifically agreed that it would be bound by all “instructions as to
temperature and transportation requirements,” including those
pertaining to “continuous temperature setting . . . .” Id. ¶ 3(L)(i).
It agreed that if it failed to follow the instructions, and such failure
led to the cargo being “lost, damaged, or otherwise rejected for any
reason,” it would be “liable for the full value of the load.” Id.
Under the terms of the Agreement, NFE knew that it may
be required to follow a shipper or customer’s instructions for
temperature and transportation, and that those instructions may
be provided for in a bill of lading. The terms of the Agreement also
demonstrate NFE’s clear intent to be bound by those instructions.
NFE argues that the Agreement is ambiguous because the
Agreement’s merger clause creates an inherent conflict with the
attempt to incorporate other terms or documents by reference.
ECF No. 19 at 2, 5–6. It argues that such an inherent conflict
produces “at least two competing interpretations[,]” rendering the
Agreement ambiguous. Id. at 5.
A contract is ambiguous when its meaning is uncertain,
doubtful, or subject to more than one reasonable interpretation.
In re Davenport, 522 S.W.3d 452, 456 (Tex. 2017) (citing Coker v.
Case 4:25-cv-03420 Document 23 Filed 07/13/26 in TXSD Page 7 of 9

8
Coker, 650 S.W.2d 391, 393 (Tex. 1983)). The question of
“[w]hether a contract is ambiguous is a matter of law for the court”
to decide. Id. (citation omitted). If the court determines that there
is no ambiguity, the contract “will be enforced as written.” Id.
at 457. The mere presence of a merger clause does not preclude the
incorporation by reference of other documents. Galban v. Inst. for
Int’l Educ. of Students, No. 22- 4917, 2024 WL 3950216, at *7 (N.D.
Ill. Aug. 26, 2024) (citing ECHO, Inc. v. Whitson Co., 52 F.3d 702,
707 (7th Cir. 1995)) (“Notwithstanding the presence of a merger
clause, language elsewhere in a contract may show an express
intention to incorporate by reference.”).
The plain language of the Agreement is not ambiguous. It is
not subject to two reasonable interpretations, as NFE asserts.
Despite the merger clause, there is no question that the parties’
expressly intended to incorporate the Bill of Lading’s instructions
into the Agreement. While the merger clause overrides any terms
or conditions “contained in any other documents” that conflict with
those in the Agreement, the Bill of Lading’s reefer-setting
instructions are not in conflict with the terms of the Agreement.
Additionally, while NFE argues that the reefer-setting
requirement was not a material term, it is clear that it was. The
carrier’s responsibility to avoid any loss or damage and deliver
shipments in good condition is contemplated throughout the
Agreement. E.g., ECF No. 18-2 ¶ 3(A) (“Carrier agrees that all
motor vehicles . . . .shall be in good and suitable operating
condition so as to avoid any loss of or damage to product . . . [and]
that it will undertake all reasonable efforts to transport all
shipments in good condition . . . .”). The entire strawberry
shipment was rejected due to NFE’s admitted failure to run the
reefer at a continuous temperature setting.
Case 4:25-cv-03420 Document 23 Filed 07/13/26 in TXSD Page 8 of 9

9
NFE was bound by the terms of the Agreement, including
the Bill of Lading’s instruction to maintain a continuous reefer-
setting. NFE admits that it failed to run the reefer at a continuous
temperature setting during the strawberry shipment. NFE
breached a material term of the parties’ Agreement. Accordingly,
NFE is liable for breach of contract.
5. Conclusion
Plaintiff’s Motion for Partial Summary Judgment, ECF
No. 18, is GRANTED.
Signed at Houston, Texas, on July 13, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
Case 4:25-cv-03420 Document 23 Filed 07/13/26 in TXSD Page 9 of 9