Court of Appeals of Texas, Corpus Christi-Edinburg.
BROCK SERVICES, LLC f/k/a Miken Specialities, Ltd., Appellant,
Eduardo SOLIS, Appellee.
Delivered and filed October 8, 2015
On appeal from the County Court at Law No. 1 of Hidalgo County, Texas, Rodolfo Rudy Gonzalez, Judge.
Attorneys & Firms
Meredith Dinkins, Fisher & Phillips, LLP, San Antonio, TX, for Appellant.
Cindy A. Garcia, Law Offices of Cindy A. Garcia, Harlingen, TX, for Appellee.
Before Justices Longoria
Memorandum Opinion by Justice Rodriguez
*1 Appellant Brock Services, LLC f/k/a Miken Specialties, Ltd., (Brock) files this interlocutory appeal challenging the denial of its motion to compel arbitration pursuant to TEX. CIV. PRAC. & REM.CODE § 51.016 (West, Westlaw through 2015 R.S.). By one issue, Brock contends that the trial court erred in denying its motion to compel arbitration because it established the existence of a valid arbitration agreement between the parties and because the agreement provided that issues of arbitrability are to be determined by the arbitrator. We reverse and remand.
Brock employed appellee Eduardo Solis on at least two separate occasions over a two-year period. Solis’ penultimate employment with Brock began on August 19, 2011 and continued for almost two months. Within a few days of his hire, on August 22, 2011, Solis signed a Dispute Resolution Agreement (DRA) that contained an arbitration provision. The DRA created a “mutual obligation to arbitrate between ... [Brock], and all employees of [Brock]....” The DRA purportedly applied to any present or future claims, “whether known or unknown, arising out of or related to employment or termination of employment with [Brock]” and stated that the claims “shall be resolved only through final and binding arbitration, pursuant to the Federal Arbitration Act [FAA] ... and not by way of court or jury trial.”
Solis’ subsequent employment with Brock began in February 2012 and continued through October 2012. Upon his rehire in February, Solis did not sign another DRA. In October of 2012, Solis sustained an on-the-job injury for which he sought medical attention; he was placed on light duty at that time. Solis then filed a claim for workers’ compensation. On October 26, 2012, Brock fired Solis. Brock stated, as the basis for Solis’ termination, that Solis violated the company’s “no-call no-show” policy.
Solis filed a civil suit in County Court at Law No. 1 in Hidalgo County, Texas, in which he alleged that Brock wrongfully terminated his employment. Solis contends that he was fired in retaliation for filing a workers’ compensation claim. On April 1, 2015, the trial court heard argument on Brock’s motion to compel arbitration and, on April 6, 2015, entered an order denying the motion. This interlocutory appeal followed.
By its sole issue on appeal, Brock contends that the trial court abused its discretion by refusing to compel arbitration. Specifically, Brock asserts that there was an express arbitration agreement between the parties that controls for the purposes of litigation. We agree.
A. Standard of Review & Applicable Law
In appeals under In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex.2009). Whether an arbitration clause imposes a duty to arbitrate is a question of law we review de novo. Id.
*2 Arbitration involves matters of contract, and a party cannot be compelled to submit to arbitrate a dispute absent an agreement to do so. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003).
Before analyzing whether the alleged claims fall within the scope of the arbitration agreement “a threshold matter we first consider is who has the primary power to decide whether appellants can compel appellees to arbitrate: a court or an arbitrator”. Martin, 278 S.W.3d at 500.
“Courts should not assume that parties agreed to arbitrate arbitrability unless there is ‘clear and unmistakable evidence that they did so.’ ” Leshin v. Oliva, No. 04–14–00657–CV, 2015 WL 4554333, at *6 (Tex.App.—San Antonio July 29, 2015, no pet. h.) (mem.op.). If the trial court determines that the movant has established that a valid arbitration agreement exists between the parties and that the parties evidenced a “clear and unmistakable” intention to arbitrate questions of arbitrability, then a motion to compel arbitration should be granted. See id.
B. Existence of a Valid Arbitration Agreement
We begin our analysis by determining whether Brock has established the existence of an arbitration agreement with Solis. See In re C & H News, 133 S.W.3d 642, 647 (Tex.App.—Corpus Christi 2003, no pet.). A promise is illusory when it fails to bind the promisor, who retains the option of discontinuing performance. Id.
*3 On appeal, Solis challenges the element of consideration in asserting that the DRA is not a valid contract. Solis argues that the consideration was illusory because Brock reserved complete discretion to rescind, modify, or alter the arbitration agreement at any time and therefore cannot show that the alleged agreement is based on valid consideration or mutuality of obligation. Solis sites J.W. Davidson, Inc. and its progeny for the proposition that the parties’ exchange of promises to arbitrate are not enforceable because Brock maintained discretion to modify, rescind, or alter the agreement at any time. See 80 S.W.3d 566, 572–73 (Tex.2002).
We review the DRA at issue to determine whether there exists a mutuality of obligation such that Brock and Solis are equally bound to the arbitration provision at issue. See In re Halliburton Co., 80 S.W.3d at 573–73. Paragraph nine of the agreement provides as follows:
This Dispute Resolution Policy is a mutually binding agreement between The Brock Group and all employees. It is distinct, separate and different from any other modifiable company policy provision. The Dispute Resolution Policy may not be changed or modified by The Brock Group, except with the acceptance of the employee after 60 days[’] notice.
(Emphasis added.) Not only does the DRA provide for a 60–day notice period, it also explicitly requires “acceptance” of the proposed changes before they can be made.1 Therefore, both Brock and Solis are bound by the terms of the agreement, absent a later agreement to modify the same. See In re Halliburton, ABB Kraftwerke Aktiengesellschaft, 115 S.W.3d at 291.
C. Trial Court or Arbitrator to Determine Arbitrability
Having determined that a valid arbitration agreement exists between the parties, we must next determine whether the agreement evidences a clear and unmistakable intent to submit questions concerning the arbitrability of a particular claim to the arbitrator. See Forest Oil Corp., 268 S.W.3d at 61. Brock contends that the contract clearly and unmistakably sets forth an intention for the arbitratorio determine all issues of arbitrability. We agree with Brock.
*4 Parties show a “clear and unmistakable” intent to submit questions of arbitrability to arbitration by either (1) including a clause in the agreement that directs this function to the arbitrator or (2) incorporating rules into the agreement that empower the arbitrator to determine arbitrability, or both. Id. The DRA at issue provides that “all issues of arbitrability” are to be determined by an arbitrator pursuant to the FAA. We agree with Brock that the agreement between the parties shows a clear and unmistakable intent to submit questions of arbitrability to arbitration. See id. Therefore, all questions pertaining to the scope of the arbitration agreement, including a determination of whether Solis’ retaliation claim is subject to arbitration under the 2011 DRA, should be determined by an arbitrator pursuant to the arbitration agreement between the parties. See Saxa, 312 S.W.3d at 229.
Brock has proven the existence of a valid contract and has shown that the contract evidenced a clear and unmistakable intent to submit questions of arbitrability to arbitration. Therefore, we conclude that the trial court abused its discretion in denying its motion to compel arbitration and refusing to stay proceedings in the trial court pending arbitration. See Saxa, 312 S.W.3d at 229.
We sustain Brock’s sole issue on appeal.
We reverse and remand for further proceedings consistent with this opinion.
Solis raises the argument that as a prior employee, he would not be notified of any pending changes to the Dispute Resolution Agreement (DRA). We note, however, that the terms of the provision apply at the employee level and require acceptance by that employee. Therefore, Brock would be incapable of changing the terms of the DRA between it and Solis without Solis’ prior consent.
Solis also contends that Brock’s ability to modify the terms of the contract rendered it “indefinite” in that “neither the courts nor Brock Services can possibly say what Brock Services purportedly ‘agreed’ to do.” As we determined that paragraph 9 of the DRA does not allow Brock to modify the terms of the DRA without prior agreement, the mutual promises to arbitrate in the DRA are sufficiently definite. See Meru v. Huerta, 136 S.W.3d 383, 390 (Tex.App.—Corpus Christi 2004, no pet.) (recognizing that a contract must be sufficiently definite in its terms so that a court can understand what the promisor undertook).