# Major v. McCallister

> Missouri Court of Appeals · December 23, 2009 · 302 S.W.3d 227

URL: https://www.frixlaw.com/law-library/cases/9516982

## Case

- **Full name:** Victoria MAJOR, Appellant, v. Garrett Doyle MCCALLISTER and Kalupto Creations, L.L.C., Defendants, and ServiceMagic, Inc., Respondent
- **Court:** Missouri Court of Appeals
- **Decided:** December 23, 2009
- **Citations:** 302 S.W.3d 227; 2009 Mo. App. LEXIS 1829; 2009 WL 4959941
- **Precedential status:** Published
- **Opinion:** Concurrence by Rahmeyer
- **Judges:** Daniel E. Scott
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9516982

## How later opinions describe it (automated extraction)

- finding reasonable notice was satisfied where the defendant's website placed the text: "'By submitting you agree to the Terms of Use' and a blue hyperlink . . . right next to the button that [the user] pushed"
- finding sufficient notice, where the defendant’s website included a statement which read, “‘[b]y submitting you agree to the Terms of Use’ and a blue hyperlink—right next to the button that Appellant pushed.”
- finding a forum selection clause binding when the hyperlink to the terms and conditions was presented on multiple successive webpages and on the final page of the website’s sign-up process
- finding “acceptance” where webpage put user on notice of the agreement, regardless of if the user clicked on the link or read the agreement

## Opinion text

NANCY STEFFEN RAHMEYER, Judge,
concurs.
I concur in the result. The trial court, after conducting a hearing, found that the parties agreed to a venue provision. 1 We defer to the trial court’s factual determinations, and as such I concur with the result that Appellant, in this case, assented to the website terms. Had the trial court found that Appellant did not assent to the terms, whether it had been a browsewrap or clickwrap, I: would' have deferred to that determination as well.
I write this separate opinion to note that the same contract principles hold on the internet. When the consumer is presented with a contract of adhesion containing lengthy provisions and hidden terms, I believe courts should consider whether the process of assent or terms of the contract are unconscionable. 2 Here, the dispute involves a forum-selection clause assented to by Appellant’s use of a free service — terms that are not so onerous as to rise to the level of unconscionability; however, I do not want our opinion to indicate that consumers assent to any buried term that a website may provide simply by using the website or clicking “I agree.”
. While we were not provided with a transcript of the hearing and the judgment is devoid of factual findings, inherent in the judgment is the determination that Appellant had at least constructive notice of ServiceM-agic’s terms.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9516982. Public record. Not legal advice.