TURNER SPECIALTY SERVICES, LLC, Appellant

v.

MICHAELA HORN, INDIVIDUALLY AND AS NEXT FRIEND OF G.H. AND M.M., MINORS, AND ATRELLE HORN, Appellees

NO. 01-22-00031-CV

|

Opinion issued November 3, 2022

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Case No. 2020-42026

Panel consists of Chief Justice Radack and Justices Landau and Hightower.

MEMORANDUM OPINION

Richard Hightower Justice

*1 Justin Horn died while performing his job for his employer appellant Turner Specialty Services, LLC (Turner Specialty). Appellees Michaela Horn, both in her individual capacity as Justin’s spouse and as next fried of their two minor children, along with Justin’s mother, Atrelle Horn, (collectively, the Horns), sued Turner Specialty and four other defendants.¹ Among their claims, the Horns asserted that Justin died as a result of Turner Specialty’s gross negligence.

Turner Specialty filed a special appearance, asserting that the trial court had neither general nor specific jurisdiction over it. The trial court signed an order denying the special appearance, and Turner Specialty appealed.² Because the record demonstrates that Turner Specialty has sufficient minimum contacts with Texas, we conclude that the trial court has specific jurisdiction, and we affirm the order.

Background

Turner Specialty is a Louisiana limited liability company headquartered in Baton Rouge, Louisiana. It provides turnaround maintenance services at refineries and petrochemical facilities in states along the Gulf of Mexico, including Alabama, Mississippi, Louisiana, and Texas. In 2019, around 20 percent of Turner Specialty’s revenue was attributable to Texas projects. Turner Specialty has one office in Texas, but its parent company, Turner Industries, has additional offices in Texas, which Turner Specialty utilizes for certain purposes. For instance, Turner Specialty uses the personnel offices of Turner Industries in Texas for hiring and onboarding its employees. In July 2020, Turner Specialty had 1,270 employees, with 157 of those employees working in Texas.

Turner Specialty contracted with Hunt Refining Company to provide catalyst work at Hunt’s refinery in Tuscaloosa, Alabama. Catalyst work involves working in enclosed spaces, such as large tanks and reactors, in an inert atmosphere lacking oxygen. Because of the lack of oxygen, catalyst workers wear air supply equipment, including a helmet, while working. The catalyst work at the Hunt Refinery involved cleaning the inside of large tanks or reactors in an inert atmosphere.

Catalyst workers are specialized workers who are in limited supply in the United States. In March 2019, Turner Specialty was seeking catalyst workers for the work at the Hunt Refinery. At that time, Justin, a Texas resident, was a catalyst worker employed by a Texas company, Cat-Spec, Ltd.—a catalyst service provider and competitor of Turner Specialty.

Turner Specialty employee Jesse Faught knew Justin. On March 5, 2019, Faught texted Justin to determine whether Justin was interested in working for Turner Specialty at the Hunt Refinery. Justin indicated that he was interested, and Faught gave Justin’s contact information to Turner Specialty employee John Ellis. Ellis texted Justin and then spoke with him on phone about the job. Ellis explained that the catalyst work at the Hunt Refinery would last only 30 days but told Justin that he would use him for other jobs if he could. Turner Specialty offered Justin more money than he was making at Cat-Spec, and he accepted the job offer. At the time of the communications, Justin was in Texas and Faught and Ellis were in Louisiana.

*2 Turner Specialty pays Turner Industries to use Turner Industries’ personnel office located in Beaumont, Texas. After Justin accepted the job offer, Turner Specialty directed Justin to go to the Beaumont personnel office on March 14, 2019. There, Justin filled out pre-employment paperwork, underwent drug testing and a physical examination, and received online safety training from Turner Specialty on which he was tested. Ten of the fifteen members of the catalyst crew on which Justin later worked at the Hunt Refinery also were Texas residents who received their initial safety training from Turner Specialty in Texas.

Turner Specialty transported Justin and other employees from Texas to the Hunt Refinery in Alabama, where Justin started work on March 16, 2019. Once there, Justin and other members of the catalyst crew received additional training. That training related to the catalyst work. More specifically, the training covered working in confined spaces; concerned how to use air supply equipment, including a helmet, in an inert atmosphere; and involved emergency rescue procedures.

To perform the catalyst work, Turner Specialty supplied Justin and the catalyst crew with air supply equipment, including helmets, that it had purchased from Edelhoff Technologies, U.S.A., LLC—a Texas limited liability company based in Texas. Turner Specialty had an agreement with Edelhoff to maintain and repair the equipment and to train Turner Specialty’s employees on the equipment’s use and maintenance.

Turner Specialty had purchased four helmets from Edelhoff in December 2015. One of those helmets was Helmet 29. In August 2016, Turner Specialty contacted Edelhoff, notifying it that Helmet 29 needed repair due to a broken screw. Turner Specialty sent Helmet 29 to Edelhoff in Texas where a repair was made. Edelhoff then sent it back to Turner Specialty.

On March 26, 2019, Justin died while performing catalyst work at the Hunt Refinery. At the time, he was working in an inert atmosphere and wearing air supply equipment purchased from Edelhoff, including Helmet 29.

On July 15, 2020, Justin’s wife, Michaela, individually and as next friend of their two minor children, filed a wrongful death suit. Michaela sued Edelhoff, asserting products-liability and negligence claims, and she sued premises owner, Hunt, for negligence. She also sued Justin’s employer, Turner Specialty. Because Turner Specialty subscribed to Texas workers’ compensation insurance, which paid death benefits to the Horn family, Michaela asserted only a gross negligence claim against Turner Specialty in the suit. See TEX. LAB. CODE. § 408.001(a)–(b) (providing that, except for instances of intentional acts or gross negligence, recovery of workers’ compensation benefits is “the exclusive remedy” for worker’s legal beneficiaries against worker’s employer for employee’s death). Later, Justin’s mother, Atrelle, was added as a plaintiff, and two defendants were also added: (1) Turner Specialty’s parent company, Turner Industries, which was sued for negligence, and (2) another company, which had also supplied equipment, including alarms and sensors, for the catalyst work.

In their live pleading, the Horns claimed that, “[a]t the time of his death, Justin Horn worked for Defendant Turner Specialty Services, LLC and/or Turner Industries Group, L.L.C.” The Horns alleged that, when he died, Justin was wearing an “Air Supply System” manufactured by Edelhoff that “was owned and/or in the control of Turner Specialty Services, LLC and/or Turner Industries Group, L.L.C. and/or Hunt.” They asserted, “Suddenly, and without warning to Justin Horn, the Air Supply System malfunctioned, depriving him of oxygen” and that, “[a]s a result, Justin Horn subsequently suffocated and died.”

*3 The Horns premised their strict products liability claim against Edelhoff on allegations that “the Air Supply System was defective and in an unreasonably dangerous condition” when Edelhoff sold it to Turner Specialty. Alternatively, they claimed that Edelhoff had “altered or modified the Air Supply System, rendering it defective and unreasonably dangerous.” The Horns also asserted that Edelhoff was negligent because it had not properly maintained the air supply equipment and had not properly trained “employees responsible for inspections and maintenance” of the equipment.

The Horns’ negligence claims against Turner Industries were based in part on allegations that it had failed to properly train its employees. In making the gross negligence claim against Turner Specialty, the Horns generally alleged that Turner Specialty’s “acts and omissions when viewed from the standpoint of [Turner Specialty], involved an extreme degree of risk, considering the probability and magnitude of the potential harm to [the Horns].”

Turner Specialty and Turner Industries filed separate special appearances. Each asserted that the trial court lacked general or specific personal jurisdiction. Relevant to specific jurisdiction, Turner Industries challenged the Horns’ allegation that it had been “doing business” in Texas because it had “committed a tort in the State of Texas at facilities it owns, and/or leases, and operates, including at its leased facility in Beaumont, Texas.” Specifically, the Horns alleged that Turner Industries had “negligently trained, hired, and/or retained Texas residents who formed the crew conducting catalyst work that Justin Horn was doing on the date of the incident” and that the “negligent training, hiring, and/or retention of Texas resident workers contributed to Justin Horn’s death.”

Turner Industries asserted that the Horns’ allegations that it had “negligently trained, hired, and/or retained Texas residents who formed the crew conducting the Catalyst work Justin Horn was doing on the date of the incident” were false because Turner Industries had not employed or trained Justin or the catalyst crew. Turner Industries offered the affidavit of Gerald Braud, an executive vice president of both Turner Industries and Turner Specialty.

Braud testified that, while Turner Specialty was a subsidiary of Turner Industries, they were separate companies. He also testified that the catalyst work at the Hunt Refinery was provided by Turner Specialty, not Turner Industries, pursuant to a contract between Hunt and Turner Specialty. Braud averred that Turner Industries “did not recruit, train, or employ Justin Horn or any other member of the Catalyst crew that was performing the Catalyst work at the Hunt Refinery.” Rather, “[t]he Catalyst crew, including Justin Horn, were employees of [Turner Specialty].” Turner Industries also asserted that it was not subject to general personal jurisdiction in Texas because it was not “essentially at home” in Texas, as required for general jurisdiction.

To support jurisdiction over Turner Specialty, the Horns alleged in their live pleading that Turner Specialty had “conduct[ed] a substantial amount of business in Texas.” They also alleged that Turner Specialty had recruited Justin, a Texas resident, to perform the catalyst work at Hunt Refinery and that Turner Specialty had entered into an oral employment contract with Justin to be performed in Texas. They further alleged that Turner Specialty had a contract with Edelhoff for the purchase, maintenance, and repair of the air supply equipment in Texas.

*4 In its special appearance, Turner Specialty acknowledged that it, not Turner Industries, had hired and employed Justin. Turner Specialty also acknowledged that it had contacted Justin to work on the Hunt Refinery job because he possessed the specialized skills necessary to do the catalyst work, but Turner Specialty denied that it knew that Justin was in Texas or a Texas resident at the time its representatives contacted him, and it denied that it had entered into an oral contract with Justin. Turner Specialty further asserted that the Horns’ claim against Turner Specialty did not arise out of or relate to its business dealings with Edelhoff.

Turner Specialty also acknowledged that it had provided safety training in Texas to Justin and to other members of the catalyst crew who were Texas residents. But it minimized the importance of the Texas safety training:

Any attempt by [the Horns] to establish personal jurisdiction over [Turner Specialty] with allegations of training in Texas, i.e., that [Turner Specialty’s] failures to train, or failure to properly train Justin Horn occurred in Texas, and such failures caused or contributed to the alleged Alabama-incident, also fail to establish personal jurisdiction over [Turner Specialty].

Turner Specialty offered the affidavit of James Watkins, its vice president. Regarding the training, Watkins testified that “Justin Horn traveled to Tuscaloosa, Alabama, arriving on or about March 15, 2019 and began safety training specific to the job as described below in Alabama on or about March 16, 2019 at [Hunt’s] facility with the majority of the other members of his Catalyst crew.” Watkins continued,

The only training received in Texas by Justin Horn and the Texas residents hired by [Turner Specialty] who worked on Justin Horn’s Catalyst crew was basic Safety and Health[ ] Orientation (“SHO”) training when they were initially hired. The SHO training involved on-line training with regard to general safety principles, not safety training specific to inert atmosphere work as further described herein. All other training including the training relevant to the Catalyst work at the Hunt Refinery was provided by [Turner Specialty] to Justin Horn and Horn’s Catalyst crew outside the State of Texas. This training included confined space, confined space attendant, helmet user qualification, fresh air supply, and rescue. Confined space training involves training to work in enclosed tanks, vessels or other confined spaces. Confined space attendant training concerns training for personnel who monitor the access to and assist entrants into the confined space. Helmet user qualification and fresh air supply training pertains to training regarding the helmet and air supply equipment for use in the inert atmosphere inside the confined spaces. Rescue training involves training concerning what to do in case of an emergency.

Turner Specialty labeled Justin’s safety training in Texas as “fortuitous.” It cited Watkins’s testimony indicating that newly hired Turner Specialty employees underwent the onboarding process at whatever personnel office was the most convenient for them. Thus, if a new hire, like Justin, lived in Texas, he would be onboarded in the nearest Texas personnel office rather than being required to travel to Turner Specialty’s personnel office in Louisiana.

Turner Specialty also contended that its contacts with Texas, including the training that it provided to Justin in Texas, were not substantially connected to the litigation. It asserted that “the incident from which Plaintiffs’ claims arise occurred in Alabama, and therefore, the operative facts of this litigation from which the claim arose—or TSS’ actionable conduct—occurred in and concern Alabama.” Turner Specialty claimed that the safety training that Justin received in Texas “[did] not relate to the operative facts of the incident made basis of this lawsuit, nor would they satisfy the requisite ‘substantial connection’ between the operative facts and the forum.” It asserted that the catalyst training, which occurred in Alabama, was the training that had a “substantial connection to the operative facts of the litigation.”

*5 Turner Specialty also asserted that, while it conducted business in Texas, it was not subject to general jurisdiction because it did not have sufficient systematic and continuous contacts to render it “at home” in Texas.

In their special-appearance response, the Horns claimed that the trial court had general and specific jurisdiction over Turner Specialty. Addressing specific jurisdiction, they asserted, inter alia, that the safety training provided in Texas by Turner Specialty to Justin and to 10 of the 15 members of the catalyst crew supported the trial court’s specific personal jurisdiction over Turner Specialty. The Horns offered Turner Specialty’s discovery responses, which confirmed that Justin and 10 members of the catalyst crew had received safety training in Texas and that Justin had received the safety training in Texas 12 days before his death. The Horns’ evidence included a 29-page printout reflecting that, in conjunction with the Texas safety training, Justin had completed an eight-module safety test at the Beaumont office.

Following a non-evidentiary hearing, the trial court granted Turner Industries’ special appearance but denied that of Turner Specialty. Turner Specialty now appeals the denial of its special appearance.³

Personal Jurisdiction

In one issue, Turner Specialty contends that the trial court erred by denying its special appearance.

A. Standard of Review

As a question of law, we review de novo whether a trial court has personal jurisdiction over a nonresident defendant. See Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 8 (Tex. 2021). Resolving this question of law, though, may require a court to decide questions of fact. Id. When, as here, the court does not issue findings of fact for its special-appearance decision, we presume that all fact disputes were resolved in favor of the decision and imply all relevant facts necessary to support the judgment that are supported by the evidence, unless they are challenged on appeal. See id.; M & F Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co., 512 S.W.3d 878, 885 (Tex. 2017).

B. Applicable Legal Principles

“Texas courts may assert in personam jurisdiction over a nonresident if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with federal and state due-process guarantees.” Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). The Texas long-arm statute permits personal jurisdiction over a nonresident doing “business in this state.” TEX. CIV. PRAC. & REM. CODE § 17.042. The statute lists three activities that constitute “doing business”: (1) contracting with a Texas resident when either party is to perform the contract in whole or in part in Texas; (2) committing a tort in whole or in part in Texas; and (3) recruiting Texas residents for employment inside or outside of Texas. Id. However, these listed activities are non-exclusive. See id. (stating that listed activities are “[i]n addition to other acts that may constitute doing business” in Texas); Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 659 n.9 (Tex. 2010) (noting list is non-exclusive). “[T]he long-arm statute’s broad doing-business language allows the statute to reach as far as the federal constitutional requirements of due process will allow.” Moki Mac, 221 S.W.3d at 575 (internal quotation marks omitted). Thus, when “doing business” is alleged as a ground for personal jurisdiction, “we only analyze whether [the nonresident defendant’s] acts would bring [it] within Texas’ jurisdiction consistent with constitutional due process requirements.” Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009).

*6 To satisfy due-process requirements, personal jurisdiction may be exercised over a nonresident defendant only if two requirements are met: (1) the defendant has “minimum contacts” with the forum state and (2) the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. Luciano, 625 S.W.3d at 8; Moki Mac, 221 S.W.3d at 575. A defendant establishes minimum contacts with a state when it purposefully avails itself of the privilege of conducting activities within the forum state. Retamco Operating, Inc., 278 S.W.3d at 338. Purposeful availment is the touchstone of the jurisdictional due-process analysis. Luciano, 625 S.W.3d at 9. “There must be ‘some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ ” Id. (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).

The Supreme Court of Texas has identified three distinct aspects of the “purposeful availment” requirement. First, only the defendant’s contacts with the forum are relevant because a nonresident should not be called into court in a jurisdiction solely as a result of the unilateral activity of another party or third person. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005). Second, the defendant’s acts must be purposeful, as opposed to random, isolated, or fortuitous. Id. Third, the defendant must seek some benefit, advantage, or profit by availing itself of the jurisdiction. Id.

A defendant’s contacts with a forum can give rise to either specific or general jurisdiction. Moki Mac, 221 S.W.3d at 575–76. As discussed below, here, we focus on specific jurisdiction. To constitute the minimum contacts required for a Texas court to exercise specific jurisdiction over a nonresident defendant, the defendant’s contacts with Texas (1) must be purposeful, as discussed above, and (2) the cause of action must “arise from or relate to” those forum contacts. Id.

A trial court determines a special appearance “on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony.” TEX. R. CIV. P. 120a(3); see Touradji v. Beach Capital P’ship, L.P., 316 S.W.3d 15, 23 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“The plaintiff’s original pleadings as well as its response to the defendant’s special appearance can be considered in determining whether the plaintiff satisfied its burden.”). On appeal, the scope of our review of a ruling on a special appearance includes all the evidence in the record. PetroSaudi Oil Servs. Ltd. v. Hartley, 617 S.W.3d 116, 132 (Tex. App.—Houston [1st Dist.] 2020, no pet.).

The plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident defendant within the provisions of the Texas long-arm statute. Kelly, 301 S.W.3d at 658. Once met, the burden shifts to the defendant to negate all bases of personal jurisdiction alleged by the plaintiff. Id. Here, even aside from their allegations that Turner Specialty entered into contracts with Texas residents to be performed in Texas and recruited Justin, a Texas resident, to work for Turner Specialty, the Horns’ allegation that Turner Specialty had “conduct[ed] a substantial amount of business in Texas” alone was sufficient to meet the minimal pleading requirement to satisfy the long-arm statute. See Devon Energy Corp. v. Moreno, No. 01-21-00084-CV, 2022 WL 547641, at *5 (Tex. App.—Houston [1st Dist.] Feb. 24, 2022, no pet.) (mem. op.) (holding that allegation that defendant did “a substantial amount of business in Harris County, Texas” satisfied initial, minimal pleading requirement). Thus, Turner Specialty had the burden to present evidence negating the Horns’ alleged bases for personal jurisdiction. See Kelly, 301 S.W.3d at 658.

C. Analysis

*7 Although the Horns cite a number of contacts with Texas to support their assertion that the trial court has specific jurisdiction over Turner Specialty, we conclude that Turner Specialty’s conduct of providing safety training to Justin and his crewmates in Texas sufficiently supports specific jurisdiction. See Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 151 (Tex. 2013) (recognizing that single contact with Texas may support jurisdiction); Nogle & Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277, 282 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (focusing on one of “many different contacts” nonresident defendant had with Texas to hold that defendant was subject to specific personal jurisdiction). As discussed, the jurisdictional evidence showed that Turner Specialty provided Justin online safety training at the Beaumont personnel office 12 days before his death. In conjunction with the training, Justin completed an eight-module safety test. And the evidence showed that two-thirds of Justin’s crewmates received safety training in Texas. As acknowledged by Turner Specialty in its special appearance, the Horns raised lack of proper training by Turner Specialty as conduct “caus[ing] or contribut[ing] to the alleged Alabama-incident” involving Justin’s death.

We begin by determining whether the Texas safety training constituted purposeful availment. See Moki Mac, 221 S.W.3d at 576. As noted, the purposeful availment analysis considers not only the conduct of the defendant, as opposed to the plaintiff or a third party, but also considers whether those contacts were random or fortuitous and whether the defendant benefitted from those contacts. See Michiana, 168 S.W.3d at 785. In its brief, Turner Specialty characterizes its conduct of providing safety training to Justin in Texas as fortuitous. We disagree.

Here, Turner Specialty’s representatives, Jesse Faught and John Ellis, initiated contact with Justin seeking his in-demand skills as a catalyst worker. The jurisdictional evidence—specifically, Ellis’s deposition testimony offered in support of the special appearance—showed that Ellis “directed” Justin to the Beaumont personnel office to complete the onboarding process, which included the safety training. Ellis qualified his testimony by stating that he directed Justin to the Beaumont office because it was a more convenient location for Justin than Turner Specialty’s Louisiana office. But the evidence showed that sending Justin to the Beaumont office was not an anomaly or specific to Justin. Watkins testified in his affidavit that Turner Specialty paid Turner Industries to use the Beaumont personnel office to onboard Texas residents that it hired. Dwight Braud, an executive vice president for Turner Industries and Turner Specialty, characterized the Beaumont office as “a shared personnel office” between Turner Specialty and Turner Industries. And, as noted, 10 other Turner Specialty employees on Justin’s catalyst crew also received initial safety training from Turner Specialty in Texas.

In short, the evidence showed that Turner Specialty directed Justin to complete the onboarding process, including the safety training, at their Beaumont personnel office. No evidence showed that the decision regarding where Justin would receive the safety training was made or initiated by him. Cf. id. at 787. Nor does the evidence show that the location of where Justin received the safety training was random or fortuitous. Turner Specialty paid Turner Industries to share the Beaumont personnel office for purposes of onboarding and training Texas residents that it hired. Had Turner Specialty wanted to avoid jurisdiction in Texas it could have required Justin to complete the safety training outside of Texas. See id. at 785 (“[A] a nonresident may purposefully avoid a particular jurisdiction by structuring its transactions so as neither to profit from the forum’s laws nor be subject to its jurisdiction.”). The trial court also could have reasonably inferred that Turner Specialty benefited from providing the safety training to Justin in Texas. By onboarding and training employees in a location more convenient for them, it is reasonable to infer that Turner Specialty incentivized Texas residents to work for Turner Specialty. And, by doing so, Turner Specialty acquired workers, like Justin, who had skills that were in limited supply. For these reasons, we conclude that, by conducting safety training as part of the onboarding process in Texas, Turner Specialty purposefully availed itself of the privilege of conducting activities in Texas. See id.

*8 But “purposeful availment alone will not support an exercise of specific jurisdiction.” Moki Mac, 221 S.W.3d at 579. The defendant’s liability must also arise from or relate to the purposeful forum contacts. Id. “This so-called relatedness inquiry defines the appropriate ‘nexus between the nonresident defendant, the litigation, and the forum.’ ” Luciano, 625 S.W.3d at 14 (quoting Moki Mac, 221 S.W.3d at 579).

In Moki Mac, the Supreme Court of Texas held that, for a cause of action to arise from or relate to purposeful forum contacts, “there must be a substantial connection between those contacts and the operative facts of the litigation.” Id. at 585. Since then, the United States Supreme Court in Ford Motor Company v. Montana Eighth Judicial District Court clarified that specific jurisdiction does not “always require[e] proof of causation—i.e., proof that the plaintiff’s claim came about because of the defendant’s in-state conduct” because “some relationships will support jurisdiction without a causal showing.” 141 S. Ct. 1017, 1026 (2021).

The Court explained,

None of our precedents has suggested that only a strict causal relationship between the defendant’s in-state activity and the litigation will do. As just noted, our most common formulation of the rule demands that the suit ‘arise out of or relate to the defendant’s contacts with the forum. The first half of that standard asks about causation; but the back half, after the ‘or,’ contemplates that some relationships will support jurisdiction without a causal showing.

Id. (internal citation omitted).

The Supreme Court cautioned, however, “[t]hat does not mean anything goes” because the phrase “ ‘relate to’ incorporates real limits” to adequately protect nonresident defendants. Id. There must be an “affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that t[ook] place” in the forum. Id. at 1031 (quoting Bristol-Myers Squibb Co. v. Superior Court. of Cal., 137 S. Ct. 1773, 1776 (2017)).

In Luciano, the Supreme Court of Texas declined to determine whether, after Ford, its “substantial connection” standard found in Moki Mac “exceed[ed] the bounds of due process.” 625 S.W.3d at 16 n.5. The court explained that it need not make that determination because its holding “rest[ed] on the Supreme Court’s analysis in Ford Motor Co.—a case whose factual circumstances resemble[d] those [in Luciano]—to determine whether a product liability lawsuit ‘arise[s] out of or relate[s] to’ a nonresident defendant’s contacts with the forum state.” Id.

After Ford and Luciano, this Court recognized that the relatedness inquiry “does not require a strict causal relationship between the defendant’s in-state activity and the litigation” but also recognized that it “requires that there be a connection between the nonresident defendant’s purposeful contacts in Texas and the plaintiff’s suit.” Weeks Marine, Inc. v. Carlos, No. 01-21-00015-CV, 2021 WL 4897714, at *3 (Tex. App.—Houston [1st Dist.] Oct. 21, 2021, pet. filed) (mem. op.) (citing Luciano, 625 S.W.3d at 14). In Ford, the Supreme Court upheld specific jurisdiction against the defendant, Ford, because there was “a strong relationship among the defendant, the forum, and the litigation,” citing that tripartite connection as being “the essential foundation of specific jurisdiction.” 141 S. Ct. at 1028 (internal quotation marks omitted). Thus, in determining whether the suit arises out of relates to a defendant’s contacts with the forum, we focus on the connection between the litigation, the defendant, and the forum. See id.; Moki Mac, 221 S.W.3d at 584–85. And, in making this determination, we are mindful that the relatedness inquiry does not require a strict causal relationship between the defendant’s in-state activity and the litigation. See Luciano, 625 S.W.3d at 14 (citing Ford Motor Co., 141 S. Ct. at 1026).

*9 Here, the issue of whether Turner Specialty’s failure to properly train Justin and his crewmates caused or contributed to his death is an operative fact of the Horns’ gross negligence claim against Turner Specialty, and the safety training that Turner Specialty provided to Justin and his crewmates in Texas is directly related to that claim. See Nogle, 290 S.W.3d at 284 (holding that nonresident defendant’s contract with Texas-based engineer to design inspection procedure for wing spar supported specific jurisdiction when plaintiffs asserted negligence in design and inspection of wing spar). Thus, the direct relationship between Turner Specialty’s in-state conduct and the complained-of liability—that is, the relationship among the defendant, the forum, and the litigation—are sufficiently close to support specific jurisdiction over Turner Specialty. See Ford Motor Co., 141 S. Ct. at 1032; Moki Mac, 221 S.W.3d at 575–76.

Turner Specialty argues that the Texas safety training does not have a strong enough relationship or substantial connection to the gross negligence claim because the incident occurred in Alabama, not in Texas. In support of this proposition, Turner Specialty cites Moki Mac. There, the Supreme Court of Texas determined that there was no specific jurisdiction over Moki Mac, a Utah-based tour company, sued in Texas for wrongful death by the parents of a teenager who died in Arizona while hiking with Moki Mac. Id. at 573, 585. Like here, the decedent died outside the Texas forum, but unlike here, there were no allegations of negligent conduct by the non-resident defendant in Texas that led to his death. See id. at 573. The only connection Moki Mac had to Texas was sending an advertising brochure and a release to Texas, which the parents alleged contained misrepresentations on which they relied. See id.

Unlike the Texas-based misrepresentations in Moki Mac, which were tangential to the plaintiffs’ core negligence claim, here, Turner Specialty’s alleged Texas-based conduct in providing improper safety training is an alleged basis for Turner Specialty’s liability. See Glencoe Capital Partners II, L.P. v. Gernsbacher, 269 S.W.3d 157, 167 (Tex. App.—Fort Worth 2008, no pet.) (distinguishing Moki Mac on ground that Texas misrepresentations, there, were “tangential to the plaintiffs’ core negligence claim,” whereas alleged Texas misrepresentations in Glencoe constituted operative facts of plaintiff’s claims). As noted, we are mindful that the relatedness inquiry does not require a strict causal relationship between the defendant’s in-state activity and the litigation, but, here, the Horns allege that the improper training, at least in part, caused or contributed to Justin’s death. Thus, Turner Specialty’s liability, if any, arises directly from and relates to the Texas safety training.

Turner Specialty also points to the principle of “interstate federalism” to challenge jurisdiction. In Ford, the Supreme Court recognized that the rules comprising the minimum-contacts requirement “reflect two sets of values—treating defendants fairly and protecting ‘interstate federalism.’ ” 141 S. Ct. at 1025. Interstate federalism is “the component of federalism doctrine that concerns the relative powers of the several States.” Hood v. Am. Auto Care, LLC, 21 F.4th 1216, 1221 (10th Cir. 2021) (citing Ford, 141 S. Ct. at 1025). “[P]rinciples of interstate federalism, which recognize that ‘[t]he sovereignty of each State implies a limitation on the sovereignty of all its sister States,’ protect defendants from ‘the coercive power of a State that may have little legitimate interest in the claims in question.’ ” Id. (quoting Bristol-Myers Squibb, 137 S. Ct. at 1780–81).

In Ford, the Supreme Court held that the principles of interstate federalism were served, in each of the two underlying products-liability suits, by subjecting Ford to personal jurisdiction in Montana and Minnesota, respectively, in suits filed by resident plaintiffs whose defective Ford vehicles had crashed and caused injuries in those states. 141 S. Ct. at 1023. The Court rejected Ford’s argument offered to support personal jurisdiction in Washington and North Dakota where each vehicle had been purchased by its original owner many years earlier but otherwise had no other connection with the suits. Id. at 1030–32. The Court noted that, in each of those two states, the suit would “involve[ ] all out-of-state parties, an out-of-state accident, and out-of-state injuries,” resulting in “a less significant relationship among the defendant, the forum, and the litigation’ ” Id. at 1030 (internal quotation marks omitted). The Court noted that “each of the plaintiffs [had] brought suit in the most natural State”—Montana and Minnesota—where the plaintiffs resided and where the injuries incurred. Id. at 1031.

*10 Here, Turner Specialty asserts that “the most natural State” for the instant suit is Alabama because that is where the incident occurred—thereby equating Alabama in this case with Montana and Minnesota in Ford and equating Texas with Washington and North Dakota. But that comparison is not apt. Justin was not a resident of Alabama but a resident of Texas. Justin had only been in Alabama for 10 days when he died performing a job for which he had been recruited, hired, and partly trained in Texas. In short, the facts here are not as clear-cut with respect to an interstate federalism analysis as they were in Ford. Nevertheless, we are mindful that, in Ford, the Court explained that the principles of interstate federalism supported jurisdiction in Montana and Minnesota because each state had significant interests in “providing [their] residents with a convenient forum for redressing injuries inflicted by out-of-state actors” and in “enforcing their own safety regulations.” Id. at 1030 (brackets in original; internal quotation marks omitted). Likewise, Texas has an interest in providing a convenient forum for its residents, when, as here, the resident was recruited, hired, and trained in Texas by an out-of-state actor who then transported the resident to another state to perform a short-term job in a potentially lethal environment. For these reasons, we conclude that the principles of interstate federalism do not tip the scale in favor of Alabama.

Turner Specialty also contends that its “actionable conduct that is substantially related to the operative facts of this litigation concerns the training and supervision of the air supply equipment that [Turner Specialty] provided to the Catalyst crew in Tuscaloosa, Alabama,” not its Texas conduct. Undeniably, the Horns have alleged conduct by Turner Specialty in Alabama to support their liability claim. “But the contacts an entity forms with one jurisdiction do not negate its purposeful contacts with another.” Luciano, 625 S.W.3d at 10. In other words, just because Turner Specialty could be subject to personal jurisdiction in Alabama does not mean that it cannot be subject to jurisdiction in Texas. See id.

Turner Specialty further asserts that, of the training that Justin and his crewmates received, only the training in Alabama is important to the jurisdictional analysis. It cites Watkins’s affidavit in which he testified that the Alabama training pertained to the catalyst work whereas the Texas training covered “general safety principles, not safety training specific to inert atmosphere work.” Turner Specialty contends, “[T]here is no evidence that any training in Texas, directly or even tangentially, relates to the circumstances surrounding the incident. Rather, it is much more likely that the Catalyst training provided in Alabama, to the extent relevant at all, could be ‘at issue.’ ” However, whether the Texas safety training caused or contributed to Justin’s death presents “merits-based questions that should not be resolved in a special appearance.” Nogle, 290 S.W.3d at 284; see Moki Mac, 221 S.W.3d at 583 (declining to adopt jurisdiction rule that “would require a court to delve into the merits to determine whether a jurisdictional fact is actually a legal cause of the injury”); Michiana, 168 S.W.3d at 791 (stating special appearance involves consideration of only jurisdiction, not merits or liability).

For the reasons discussed, we conclude that Turner Specialty purposely availed itself of conducting activities in Texas and that the Horns’ gross negligence claim arises from or relates to those activities. We hold that the allegations and the evidence establish that Turner Specialty had sufficient minimum contacts with Texas to be subject to specific personal jurisdiction.⁴ We further hold that the trial court did not err when it denied Turner Specialty’s special appearance. Thus, we overrule Turner Specialty’s sole issue.⁵

Conclusion

*11 We affirm the trial court’s order denying Turner Specialty’s special appearance.

Footnotes
1	The other defendants are not parties to this interlocutory appeal.
2	See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(7) (authorizing interlocutory appeal of order granting or denying special appearance).
3	The Horns did not appeal the order granting Turner Industries’ special appearance.
4	On appeal, Turner Specialty does not argue that the trial court’s exercise of personal jurisdiction over it would offend traditional notions of fair play and substantial justice—the second prong in the jurisdictional analysis. Thus, we do not address that aspect of personal jurisdiction. See Lucas v. Ryan, No. 02-18-00053-CV, 2019 WL 2635561, at *10 (Tex. App.—Fort Worth. June 27, 2019, no pet.) (mem. op.) (citing TEX. R. APP. P. 38.1(f), (i)); Twyman v. Twyman, No. 01-08-00888-CV, 2009 WL 1331341, at *7 (Tex. App.—Houston [1st Dist.] May 14, 2009, no pet.) (mem. op.); Bos. Med. Grp., Inc. v. Ellis, No. 14-06-00801-CV, 2007 WL 2447360, at *3 n.1 (Tex. App.—Houston [14th Dist.] Aug. 30, 2007) (mem. op.).
5	Because our holding that Texas has specific personal jurisdiction over Turner Specialty is dispositive, we need not address Turner Specialty’s challenge to general jurisdiction. See TEX. R. APP. 47.1.

Court of Appeals of Texas, Houston (1st Dist.).

CHG HOSPITAL BELLAIRE, LLC, Appellant

v.

Seketa JOHNSON, Appellee

NO. 01-20-00437-CV

|

Opinion issued August 30, 2022

On Appeal from the 157th District Court, Harris County, Texas, Trial Court Case No. 2019-58375

Attorneys & Firms

Warren Thomas McCollum, Lufkin, Charles T. Frazier Jr., Dallas, for Appellant.

Cesar Tavares, Jim S. Hart, Eloy Ernesto Gaitan, Houston, Emily Vechan, for Appellee.

Panel consists of Justices Goodman, Landau, and Guerra.

OPINION ON REMAND

Sarah Beth Landau, Justice

*1 Seketa Johnson sued CHG Hospital Bellaire, LLC for injuries she sustained on the job. CHG-Bellaire moved to compel arbitration under the Federal Arbitration Act (FAA). The trial court denied the motion, and CHG-Bellaire appealed, arguing that the arbitration agreement is enforceable and Johnson’s claims fall within the scope of the agreement. On the original submission of the appeal, we held the trial court did not err by denying the motion to compel because a fact issue existed on whether Johnson consented to the arbitration agreement, and we did not reach CHG-Bellaire’s argument about the scope of the agreement. CHG Hosp. Bellaire, LLC v. Johnson, No. 01-20-00437-CV, 2021 WL 1537465, at *7 (Tex. App.—Houston [1st Dist.] Apr. 20, 2021) (mem. op.), rev’d, 644 S.W.3d 188 (Tex. 2022). The Texas Supreme Court granted review, reversed our judgment, and remanded for us to consider the arbitration agreement’s scope. CHG Hosp. Bellaire, LLC v. Johnson, 644 S.W.3d 188, 189 (Tex. 2022). Because the arbitration agreement delegates questions of scope to the arbitrator, we reverse and remand.

Background

In August 2019, Johnson sued CHG-Bellaire for negligence, premises liability, and gross negligence, alleging that she sustained injuries while training as a nurse at a hospital operated by CHG-Bellaire. Johnson and her trainer had to physically lift and adjust a “very heavy” patient on the bed because the hospital did not have the equipment ordinarily used to move patients. The trainer suddenly grabbed the bed sheets and began pulling the patient up the bed without warning. Trying to catch the patient, Johnson quickly pulled the other side of the bed sheets and felt a pop in her spine followed by pain. She immediately stopped pulling the bed sheets and told her trainer about the injury.

Physicians treated Johnson’s injuries and advised her to not lift anything weighing more than 10 pounds until she fully recovered. Although Johnson had not fully healed, CHG-Bellaire placed her back on regular rotation. Johnson told her superiors that she could not perform the same duties because lifting patients violated her doctor’s orders. Nevertheless, CHG-Bellaire still required her to lift patients.

As Johnson was caring for a patient, the patient became dizzy and started to fall. Johnson rushed to prevent the patient from falling and she felt a “pull and pain” in her spine. Since the incident, the pain in Johnson’s back continued to worsen and prevented her from performing tasks she could perform before.

CHG-Bellaire answered the suit with special exceptions, a general denial, and affirmative defenses, asserting that Johnson’s claims were subject to arbitration. CHG-Bellaire argued that the parties had entered into an enforceable arbitration agreement. It also argued that Johnson’s workplace injury claims fell within the scope of the arbitration agreement.

CHG-Bellaire attached evidence to its motion to show the existence and scope of an enforceable arbitration agreement. The evidence included copies of the Employee Injury Benefit Plan (EIBP), the Employee Handbook, and the Employment Dispute Resolution Agreement (EDRA).

*2 Section 5(a)(i) of the EIBP included a provision entitled “Mutual Agreement to Arbitrate,” addressing the scope of the arbitration agreement:

This Agreement is mutual, covering all claims that Company or Claimant may have which arise from: Any injury suffered by Claimant while in the Course and Scope of Claimant’s employment with Company, including but not limited to, claims for negligence, gross negligence, and all claims for personal injuries, physical impairment, disfigurement, pain and suffering, mental anguish, wrongful death, survival actions, loss of consortium and/or services, medical and hospital expenses, expenses of transportation for medical treatment, expenses of drugs and medical appliances, emotional distress, exemplary or punitive damages and any other loss, detriment or claim of whatever kind and character.

Section 508 of the EDRA lists the claims covered by the arbitration agreement:

The Company and you mutually consent and agree to the resolution by arbitration of all claims or disputes (Claim(s)), whether or not arising out of your employment (or its termination), that the Company may have against you or that you may have against the Company or its officers, directors, members, owners, shareholders, partners, employees or agents, past or present, in their capacity as such or otherwise.... The Claims covered by this Agreement include, but are not limited to, claims for wages or other compensation due, claims for breach of any contract or covenant (express or implied); tort claims; equitable claims; claims for discrimination (including, but not limited to, race, color, sex, religion, national origin, age, marital status, or medical condition, handicap or disability); claims for retaliation or harassment; all common law claims and claims for violation of any federal, state, or other governmental law, statute, regulation, or ordinance, except for claims identified below.

Section 509 of the EDRA excludes certain claims, including worker’s compensation claims, from arbitration:

Claims you may have for workers’ compensation, unemployment compensation, or state disability insurance benefits are not covered by this Agreement.... This Agreement also does not apply to any Claim that an applicable federal statute expressly states cannot be arbitrated.

Similarly, the Employee Handbook included the same arbitration provision referenced in the EDRA:

Agreeing to the Employment Dispute Resolution Program Agreement (Agreement) electronically or otherwise constitutes your agreement to be bound by the EDR Program. Likewise, the Company agrees to be bound by this same program. This mutual agreement to arbitrate claims means that both you and the Company are bound to use the EDR Program as the sole means of resolving covered claims and disputes and agree to forego any right either may have to a jury trial on issues covered by the EDR Program. However, no remedies that otherwise would be available to you or the Company in a court of law will be forfeited by virtue of the agreement to use and be bound by the EDR Program.

CHG-Bellaire attached two affidavits to its motion. The first was from I. Tai, Escalation Manager for Saba TalentSpace, an onboarding platform. Tai testified that newly hired CHG-Bellaire employees had to review and acknowledge several employment agreements containing arbitration provisions through the online platform. Each employee had to create a secure and unique username and password, which was encrypted and stored in the Saba database. After successfully entering login information, the system prompts the employee to complete the Employee Handbook course and the EIBP course. After the employee completes the course, the Saba database tests the employees understanding of the course content, generates transcript reports, and displays the employee’s scores.

*3 Tai also testified that Johnson created a username and password on Saba, accessed various employment documents, and completed the Employee Handbook course and the EIBP course on July 8, 2019. Saba’s records showed that Johnson successfully answered all five questions in the Employee Handbook course and all three questions in the EIBP course.

CHG-Bellaire’s other affidavit was from K. Mendez, the HR Director for the Cornerstone Healthcare Group Holdings, Inc., the parent company of CHG-Bellaire. Mendez testified that she was responsible for the “overall processes and implementation of policies involving documentation related to onboarding” new employees. Mendez confirmed that the Saba reports showed that Johnson had acknowledged reviewing the Employee Handbook, the EDRA, and the EIBP.

Johnson moved to strike the motion to compel arbitration, arguing that the arbitration agreements exclude workers’ compensation claims and that the evidence did not establish a valid arbitration agreement because she testified at her deposition that she could not recall acknowledging or agreeing to the arbitration agreements. CHG-Bellaire replied to Johnson’s motion, contending that her claims fell within the scope of the arbitration agreements because she sought damages for personal injuries for her tort claims and did not allege any claims under the Texas Workers Compensation Act. It also contended that the evidence established the existence of enforceable arbitration agreements.

The trial court denied CHG-Bellaire’s motion to compel arbitration without a hearing. CHG-Bellaire appealed.¹

On the original submission of the appeal, we concluded that Johnson’s sworn testimony that she did not recall electronically acknowledging the arbitration agreement raised a fact issue on its validity. CHG Hosp. Bellaire, 2021 WL 1537465, at *7. Consequently, we did not determine whether CHG-Bellaire carried its burden of establishing that Johnson’s claims fell within the scope of the arbitration agreement. Id. (citing TEX. R. APP. P. 47.1).

After we issued our opinion, the Texas Supreme Court decided Aerotek, Inc. v. Boyd, 624 S.W.3d 199 (Tex. 2021), a case involving similar facts. CHG-Bellaire petitioned for review. The parties agreed that under Aerotek, Johnson’s sworn testimony did not create a fact issue as to the arbitration agreement’s validity. CHG Hosp. Bellaire, 644 S.W.3d at 189. The Supreme Court reversed our judgment and remanded the case to “consider Johnson’s alternative, unaddressed argument that the trial court properly denied CHG’s motion to compel arbitration because her claims do not fall within the scope of the arbitration agreement.” Id. With the validity of the arbitration agreement resolved, we turn to the scope of the agreement.

Scope of the Arbitration Agreement

CHG-Bellaire contends the trial court erred by denying its motion to compel arbitration because the arbitration agreement covers Johnson’s workplace injury claims. In response, Johnson asserts that CHG-Bellaire failed to establish that the arbitration agreement covered her claims because it explicitly excludes workers’ compensation claims.

A. Standard of review

*4 “We review interlocutory appeals of orders denying motions to compel arbitration for an abuse of discretion, deferring to the trial court’s factual determinations if they are supported by the evidence and reviewing questions of law de novo.” Valerus Compression Servs., LP v. Austin, 417 S.W.3d 202, 207 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Under this standard, we will reverse the trial court’s ruling only when “it acts in an arbitrary or unreasonable manner, without reference to any guiding rules or principles.” In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (per curiam). We construe the record in a light favorable to supporting the trial court’s ruling. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 233 (Tex. 2003); In re Est. of Guerrero, 465 S.W.3d 693, 701 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc).

B. Applicable law

After demonstrating that a valid arbitration agreement exists, a party seeking to compel arbitration must establish that the dispute is within the agreement’s scope. Baby Dolls Topless Saloons, Inc. v. Sotero, 642 S.W.3d 583, 586 (Tex. 2022). If one party resists arbitration, the trial court normally decides gateway issues, such as scope. Robinson v. Home Owners Mgmt. Enters., Inc., 590 S.W.3d 518, 531 (Tex. 2019). But arbitration is a matter of contract, so parties are free to alter these presumptions by agreement. Id. When the contract delegates the arbitrability question to an arbitrator, a court may not override the contract. Id. It has no power to decide the issue. Id.

C. The arbitration agreements delegate questions of scope to arbitrator

The EIBP arbitration agreement covers “[a]ny injury suffered by Claimant while in the Course and Scope of Claimant’s employment,” “all claims for personal injuries,” and “any other loss, detriment or claim of whatever kind and character.” Similarly, the EDRA extends to “tort claims,” “all common law claims,” and “claims for violation of any federal, state or other governmental law.”

Johnson argues that the agreements exclude her claims from coverage because they are workers’ compensation claims. The EIBP exempts from arbitration claims for “Workers’ Compensation Benefits under the Texas Workers’ Compensation Act or any other state or federal law.” The EDRA similarly states that claims for “workers’ compensation” are not subject to arbitration.

But, as CHG-Bellaire points out, scope questions are delegated to the arbitrator, not the courts. The EIBP and the EDRA both require that any question about whether claims are subject to arbitration be resolved by the arbitrator. The EIBP states, “Any question as to the arbitrability of any particular claim shall be arbitrated pursuant to the procedures set forth in this Agreement.” The EDRA similarly provides, “the exclusive authority to resolve any question as to the arbitrability of a dispute and/or any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement.” The express language of the agreements refers arbitrability issues to the arbitrator. See Robinson, 590 S.W.3d at 532 n.78. So we do not answer the question of whether Johnson’s claims fall within the scope of the arbitration agreements.

Conclusion

We reverse the trial court’s order and we remand this case for entry of an order compelling arbitration followed by dismissal.

Footnotes
1	The arbitration agreement is governed by the FAA. This Court has jurisdiction to review the interlocutory order denying CHG-Bellaire’s motion to compel arbitration. See TEX. CIV. PRAC. & REM. CODE § 51.016; see also 9 U.S.C. §§ 16(a)(1)(C), 206; Acad., Ltd. v. Miller, 405 S.W.3d 152, 154 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

Court of Appeals of Texas, Houston (1st Dist.).

LUPE HOLDINGS, LP, TRES HABANEROS/PEARLAND, LTD, AND TRES HABANEROS, LTD, Appellants

v.

TOMAS SANCHEZ, Appellee

NO. 01-21-00351-CV

|

Opinion issued July 21, 2022

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Case No. 2020-46140

Panel consists of Justices Hightower, Countiss, and Guerra.

MEMORANDUM OPINION

Richard Hightower Justice

*1 Appellants—Lupe Holdings, LP, Tres Habaneros/Pearland, Ltd, and Tres Habaneros, Ltd—challenge the trial court’s order denying their motion to compel arbitration in a lawsuit filed against them by appellee Tomas Sanchez. In its order, the trial court specified that Appellants’ arbitration request was “barred” because they had failed to “timely invoke” arbitration by the deadline in the arbitration agreement. On appeal, Appellants contend that the trial court abused its discretion in denying their motion to arbitrate because whether Appellants’ arbitration demand was barred by a lack of timely notice of their intent to arbitrate was a matter of procedural arbitrability for the arbitrator—not the trial court—to decide. Because we agree with Appellants, we reverse and remand.

Background

On July 31, 2020, Sanchez sued Appellants, which he claimed were his non-subscribing employers, for negligence and gross negligence. Sanchez alleged that on August 1, 2018, he had sustained an on-the-job injury to his foot while he was working as a dishwasher at a restaurant. As a result of his injury, Sanchez sought to recover (1) damages for mental anguish and pain and suffering, (2) lost wages, (3) medical expenses, and (4) punitive damages.

On January 9, 2021, Appellants answered, generally denying Sanchez’s claims, and asserting the “affirmative defense” of arbitration. Two months later, on March 19, 2021, Appellants filed a motion to stay judicial proceedings and to compel arbitration under the Federal Arbitration Act (FAA), pursuant to a “Mutual Agreement to Arbitrate” (Arbitration Agreement).¹ Among the evidence supporting the motion, Appellants attached the Arbitration Agreement and an “Employee Acknowledgment and Agreement Concerning Binding Arbitration Agreement” (Employee Acknowledgment) signed by Sanchez on June 5, 2018. The Employee Acknowledgement reflected that Sanchez had received a copy of the Arbitration Agreement and that, by his signature, Sanchez agreed to “adhere to and follow” the agreement. He also acknowledged that his “continued employment with the Company” constituted his acceptance of the Arbitration Agreement’s terms as a condition of his employment. Sanchez further acknowledged that he understood “that as a result of the Arbitration Agreement, any legal claims or disputes between myself [sic] and the Company, or any of its ... affiliates” would be “decided by an arbitrator and not a jury or judge.”

The Arbitration Agreement defined “the Company” as RDM Inc., including its affiliates. In support of its motion, Appellants offered the affidavit of Judson Holt, RDM’s chief executive officer. Holt testified that, as referenced in the Arbitration Agreement, Appellants were RDM’s “affiliates.”

The opening paragraph of the Arbitration Agreement provided,

As a part of, and in consideration for employment and/or continued employment and compensation, and in consideration of the Company’s mutual agreement to arbitrate, each employee agrees that any claim or controversy (“Dispute”) that he or she may have against the Company arising out of or in any way relating to an employee’s employment with the Company or termination of employment with the Company shall be submitted to and settled by final and binding arbitration.

*2 Under the heading “Covered Disputes,” the Arbitration Agreement stated:

This Arbitration Agreement between the Company and each employee to arbitrate all Disputes includes, but is not limited to: (i) all claims under [listed state and federal employee-rights statutes]; (ii) any claims based upon any federal, state, or local statute, law, ordinance, or regulation; (iii) all tort and other common law claims, including without limitation breach of fiduciary duty; (iv) all contract disputes, if any, including breaches of express or implied covenants; (v) all wage and compensation disputes; (vi) all claims of discrimination or harassment; (vii) any benefit disputes; and (viii) any claims that could be tried to a jury in the absence of this Arbitration Agreement.

Appellants asserted that the trial court should grant their motion to compel because the Arbitration Agreement was a valid and enforceable agreement between them and Sanchez. They also contended that Sanchez’s personal-injury claim was a “covered dispute” within the scope of the agreement.

Sanchez responded to the motion, asserting that it should be denied for several reasons. Sanchez argued that there was no contract to arbitrate between him and Appellants because RDM, not Appellants, had signed the agreement. He asserted that Holt’s affidavit stating that Appellants were RDM’s “affiliates” was not sufficient to show they were parties to the agreement.

Sanchez also argued that his negligence claims were not within the scope of the Arbitration Agreement because the agreement expressly provided that it did not apply to claims “for workers’ compensation benefits.” He acknowledged that Appellants were non-subscribers under the Texas Workers Compensation Act but claimed that his work-related negligence claims were nonetheless governed by the act’s provisions, thus the agreement did not apply.

Sanchez further argued that the Arbitration Agreement was not enforceable because the circumstances under which he signed the Employee Acknowledgement were procedurally unconscionable. In his affidavit supporting his response, Sanchez testified that he speaks, reads, and understands Spanish but does not speak, read, or understand English. He stated that “the paperwork” he was required to sign to start his job was only in English. He testified that he was told that the paperwork was about workers’ compensation insurance and was not told it was about arbitration. He stated that he would not have agreed to arbitrate his claims had he known that was what the paperwork said.

Finally, Sanchez argued that the motion to compel should be denied because Appellants did not satisfy a condition precedent to arbitration by giving him timely notice of their intent to arbitrate. Sanchez relied on the following provision in the Arbitration Agreement to support this assertion:

NOTICE OF CLAIMS

All Disputes must be raised by a written notice of intent to arbitrate containing a statement setting forth the nature of the dispute, the amount involved, if any, and the remedy sought. The notice of intent to arbitrate must be received by the other party within any applicable statue [sic] of limitations period as if such claim were filed in court in the absence of this Arbitration Agreement. If notice is not timely received, such claim shall be barred. Notice must be sent by certified or registered mail, return receipt requested.

*3 Written notice of intent to arbitrate by an employee must be forwarded to the Company’s Human Resources Director. Written notice of intent to arbitrate by the Company must be forwarded to the employee’s last known address, as provided by the employee to the Company.

Sanchez interpreted the Notice of Claims Provision as requiring Appellants to provide him with written notice of their intent to arbitrate his negligence claims by the expiration of the applicable two-year limitations period for his August 1, 2018 injury. See TEX. CIV. PRAC. & REM. CODE § 16.003(a). Sanchez argued that, because they “did not provide written notice of [their] intent to arbitrate within two years after [his injury],” Appellants “were untimely in providing to [him] notice of intent to arbitrate and thus failed to comply with a mandatory condition precedent to arbitration.” He pointed to a letter, dated November 30, 2018, sent by his attorney to Lupe Holdings (one of the Appellants here) stating that the attorney’s law firm represented Sanchez regarding an on-the-job injury that Sanchez had suffered on August 1, 2018. The letter also asked Lupe Holdings to preserve evidence related to the injury and warned it that Sanchez would file suit if there was no response to the letter. Sanchez asserted that the letter showed that Appellants were aware of his injury before the statute of limitations expired on August 1, 2020. Sanchez asserted that Appellants’ motion to compel arbitration was therefore “time barred by [their] failure to comply with a condition precedent to arbitration.”

Replying to Sanchez’s response, Appellants asserted that Sanchez misinterpreted the Arbitration Agreement’s Notice of Claims Provision to require Appellants to raise Sanchez’s claim in a notice of intent to arbitrate. Specifically, they contended that Sanchez incorrectly read the provision to require Appellants “to give [Sanchez] notice setting forth the nature of [Sanchez’s] dispute against themselves, the amount involved against themselves, and the remedy sought against themselves.” Appellants asserted that it made “zero sense” that they would “initiate a dispute against themselves for the benefit of [Sanchez].” Appellants also asserted that, “given [Sanchez’s] logic that the Notice of Claims [provision] states that if notice is not timely received, such claim shall be barred[,] means that [Sanchez] by implication would agree that his claims are barred against [Appellants] because [Appellants] failed to give him notice of their intent to arbitrate.” Appellants stated that would “simply not make sense.”

Appellants also replied to (1) Sanchez’s assertion that they were not parties to the Arbitration Agreement, (2) his assertion that his claims were not within the scope of the Arbitration Agreement, and (3) and his claim that the Arbitration Agreement was procedurally unconscionable. Sanchez filed a sur-reply in which he reiterated his arguments offered in his initial response to the motion to compel arbitration.

On June 9, 2021, the trial court signed an order denying Appellants’ motion to compel arbitration. In the order, the trial court stated, “The court finds the arbitration agreement is binding upon the parties. However, the employer did not timely invoke the arbitration clause. Therefore, the employer’s right to arbitrate the dispute is barred.”

*4 The trial court then quoted the full Notice of Claims Provision, underlining the following sentence: “The notice of intent to arbitrate must be received by the other party within any applicable statue [sic] of limitations period as if such claim were filed in court in the absence of this Arbitration Agreement.” The order concluded by stating, “The above provisions applied equally to both parties by the express terms of the agreement. The court finds the employer did not timely invoke the arbitration clause and thereby is barred from invoking the arbitration clause.” Other than the statute-of-limitations deadline in the Notice of Claims Provision, the trial court cited no other basis to deny Appellants’ motion to compel arbitration.

Appellants now appeal the June 9 order.²

Motion to Compel Arbitration

Appellants present three issues on appeal. Appellants’ first issue globally asserts that the trial court abused its discretion when it denied their motion to compel arbitration. In their second and third issues, Appellants argue that the trial court abused its discretion in denying their motion because the parties’ dispute regarding whether their arbitration demand is barred based on the statute-of-limitations deadline found in the Notice of Claims Provision is a matter of procedural arbitrability that should be decided by the arbitrator, not by the courts.

A. Standard of Review

“We review a trial court’s order denying a motion to compel arbitration for abuse of discretion.” Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). “We defer to the trial court’s factual determinations if they are supported by evidence but review its legal determinations de novo.” Henry, 551 S.W.3d at 115. A trial court has no discretion in determining what the law is, which law governs, or how to apply the law. Okorafor v. Uncle Sam & Assocs., Inc., 295 S.W.3d 27, 38 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

When an order denying a motion to compel arbitration does not state the grounds for the denial, we must affirm the order if any of the grounds asserted in the trial court for denying the motion are meritorious. See In re Estate of Guerrero, 465 S.W.3d 693, 701 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). However, when the trial court’s order specifies the ground on which it denied the motion, we limit our review to the reason expressly stated in the trial court’s order. Leyendecker Constr., Inc. v. Berlanga, No. 04-13-00095-CV, 2013 WL 4009752, at *4 (Tex. App.—San Antonio Aug. 7, 2013, no pet.) (mem. op.) (limiting review of order denying motion to compel to reason stated in order) (citing In re Zotec Partners, LLC, 353 S.W.3d 533, 537 (Tex. App.—San Antonio 2011, no pet.)).

B. Analysis

Here, the crucial question is whether the trial court or the arbitrator should decide whether the statute-of-limitations deadline in the Notice of Claims Provision bars Appellants’ demand for arbitration. “Ultimately, this is a question of the parties’ intent as expressed in their written agreement. When parties have contractually agreed to arbitrate their future disputes, the courts’ obligation to honor and enforce that agreement requires that they refer those disputes to arbitration.” G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 519 (Tex. 2015) (G.T. Leach Builders II).

*5 A party seeking to compel arbitration must first establish that a valid arbitration agreement exists and that the claims are within the agreement’s scope. In re Rubiola, 334 S.W.3d 220, 223 (Tex. 2011) (orig. proceeding). “Once the trial court concludes that the arbitration agreement encompasses the claims, and that the party opposing arbitration has failed to prove its defenses, the trial court has no discretion but to compel arbitration and stay its own proceedings.” In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753–54 (Tex. 2001).

Here, the trial court stated in its order that “the arbitration agreement is binding upon the parties,” indicating that the trial court determined that Appellants had proven that the parties had entered into an agreement to arbitrate. But it is less clear if, before denying the motion to compel based on the issue of timely notice, the trial court determined whether Sanchez’s negligence claims were within the scope of the Arbitration Agreement or whether the agreement was unconscionable—issues of substantive arbitrability raised by Sanchez in his response.

In its order, the trial court stated that it denied Appellants’ motion to compel arbitration based on its determination that Appellants were barred from demanding arbitration because they had not invoked arbitration by the contractual deadline, i.e., the expiration of the limitations period on Sanchez’s negligence claims. The trial court identified no other basis for the denial. Thus, it is unclear whether, when disposing of the motion to compel, the trial court bypassed the substantive-arbitrability issues raised by Sanchez and went directly to the issue of timeliness.

In any event, because timeliness was the only reason specified by the trial court for denying Appellants’ motion to compel, we limit our review to that expressly stated reason. See Leyendecker Constr., 2013 WL 4009752, at *4. Appellants argue that the trial court abused its discretion when it determined that the contractual deadline barred their arbitration request because the trial court never should have addressed the issue. Appellants contend that only the arbitrator—and not the trial court—may decide whether the statute-of-limitations deadline bars their demand for arbitration, which they assert is a matter of procedural arbitrability.

Both the United States Supreme Court and the Supreme Court of Texas have recognized the distinction between questions of substantive arbitrability—which courts decide—and procedural arbitrability—which courts must refer to the arbitrator to decide. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83–85 (2002); G.T. Leach Builders II, 458 S.W.3d at 520. In Howsam, a brokerage firm argued that its client could not initiate arbitration because the client had not initiated arbitration within a six-year deadline as required in their arbitration agreement. 537 U.S. at 81–82. The Supreme Court held that this was not a question of arbitrability for the courts to decide. Id. at 85. “Linguistically speaking, one might call any potentially dispositive gateway question a ‘question of arbitrability,’ ” but the Court explained that “the phrase ‘question of arbitrability’ has a far more limited scope” and does not encompass “ ‘procedural’ questions which grow out of the dispute and bear on its final disposition” or “allegation[s] of waiver, delay, or a like defense.” Id. at 83–84 (citation omitted). Absent an agreement to the contrary, courts decide issues of substantive arbitrability such as “whether the parties are bound by a given arbitration clause,” or “whether an arbitration clause in a concededly binding contract applies to a particular type of controversy.” Id. at 84. On the other hand, issues of procedural arbitrability, such as “whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide.” Id. at 85.

*6 In BG Group PLC v. Republic of Argentina, the Supreme Court further clarified the difference between substantive arbitrability questions addressing the existence, enforceability, and scope of an agreement to arbitrate (which courts decide), and procedural arbitrability questions addressing the construction and application of limits on that agreement (which only arbitrators can decide):

On the one hand, courts presume that the parties intend courts, not arbitrators, to decide what we have called disputes about arbitrability. These include questions such as whether the parties are bound by a given arbitration clause, or whether an arbitration clause in a concededly binding contract applies to a particular type of controversy.

On the other hand, courts presume that the parties intend arbitrators, not courts, to decide disputes about the meaning and application of particular procedural preconditions for the use of arbitration. These procedural matters include claims of waiver, delay, or a like defense to arbitrability. And they include the satisfaction of prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate.

572 U.S. 25, 34 (2014) (quotation marks and citations omitted).

In G.T. Leach Builders II, the Supreme Court of Texas also recognized the distinction between questions of substantive arbitrability and questions of procedural arbitrability and addressed whether a dispute regarding a contractual deadline to demand arbitration was a matter of substantive or procedural arbitrability. 458 S.W.3d at 520. There, a property developer—Sapphire—sued several insurance brokers over a coverage dispute relating to a development on South Padre Island. Id. at 509. The insurance brokers brought a general contractor, G.T. Leach, and other parties into the suit as responsible third parties, after which Sapphire added them to the lawsuit as defendants. Id. The new parties were added after the two-year statute of limitations for a negligence claim had expired, but at the time, the law allowed a plaintiff to bring claims against a party designated as a responsible third party after the statute of limitations had run. Id. at 510. G.T. Leach moved to compel arbitration based on its contract with Sapphire, and the trial court denied the motion. Id. The parties’ contract had required that

demand for arbitration shall be made within ... a reasonable time after the Claim has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such Claim would be barred by the applicable statute of limitations as determined pursuant to Section 13.7.

Id. at 515–16 (ellipsis in original).

In the court of appeals, Sapphire asserted that the motion to compel was properly denied because the parties’ contract “prohibited the parties from seeking arbitration if the statute of limitations for the claims made had expired.” G.T. Leach Builders, L.L.C. v. Sapphire, VP, LP, 456 S.W.3d 570, 577 (Tex. App—Corpus Christi 2013), aff’d in part, rev’d in part G.T. Leach Builders, LLC v. Sapphire VP, LP, 458 S.W.3d 502 (Tex. 2015) (G.T. Leach Builders I).

Sapphire pointed out that the statute of limitations had already expired when G.T. Leach filed its motion to compel arbitration. Id. at 578. G.T. Leach did not dispute that the statute of limitations for Sapphire’s claims had expired when it filed its motion to compel arbitration but instead asserted that the parties did not intend for the statute of limitations to bar its demand for arbitration. Id. at 579. G.T. Leach asserted that because Section 13.7 of the contract—setting out the statute of limitations—had been deleted from the contract, the contract no longer prohibited arbitration of claims after the statute of limitations had expired. Id. at 578. G.T. Leach also asserted that, because Sapphire had filed suit against it after the statutory limitations period had expired (as permitted by the law at the time), it had been impossible for G.T. Leach to file its motion to compel arbitration before the statute of limitations expired. Id. at 579. G.T. Leach claimed that the intent of the parties was to allow for a reasonable time to demand arbitration even after limitations expired, as shown by the parties’ deletion of Section 13.7. Id.

*7 The court of appeals applied principles of contract construction to resolve the parties’ dispute about the meaning and effect of the provision containing the deadline to demand arbitration. See id. The court rejected G.T. Leach’s arguments and agreed with Sapphire’s contractual interpretation that the demand was required to be made by the stated deadline (that is, by expiration of the statute of limitations for Sapphire’s negligence claim) without exception. Id. The court concluded that the trial court had not abused its discretion when it denied G.T. Leach’s motion to compel arbitration. Id.

The Supreme Court of Texas reversed, concluding that whether the deadline for demanding arbitration applied to G.T. Leach’s arbitration demand was a matter of procedural arbitrability for the arbitrator, not the courts, to determine. See G.T. Leach Builders II, 458 S.W.3d at 521. The court wrote:

In this case, the contractual deadline in the general contract falls squarely within the category of matters that grow out of the dispute and bear on [the arbitrators’] final disposition of the claims. See Perry Homes [v. Cull], 258 S.W.3d [580,] 588 [(Tex. 2008)]. The deadline does not determine the present existence, enforceability, or scope of the agreement to arbitrate the parties’ disputes, but instead imposes a procedural limit on the parties’ rights under that agreement. It bears on the arbitrators’ final disposition of Sapphire’s claims—specifically, whether the arbitrators can award Sapphire a remedy on its negligence claims in light of Sapphire’s more than two-year delay in asserting them. More pointedly, it involves an alleged “delay beyond a limitations deadline.” Perry Homes, 258 S.W.3d at 589; see also id. at 588 (noting that “federal courts ... consistently [defer to arbitrators] when waiver concerns limitations periods”). We explained in Perry Homes that, absent express contractual agreement to the contrary, issues of this nature must be resolved by arbitrators rather than courts. See id. at 588–89; see also BG Grp., 134 S. Ct. at 1207 (observing that “satisfaction of ‘prerequisites such as time limits’ ” are questions of procedural arbitrability for the arbitrator to decide).

Stated another way, the parties’ dispute over the meaning and effect of the contractual deadline does not touch upon the issue of whether an enforceable agreement to arbitrate Sapphire’s claims exists. Neither party disputes that such an agreement does exist. Instead, they dispute whether, in light of the contractual deadline, the existing, enforceable agreement limits G.T. Leach’s rights under the agreement itself....

Id. at 521–22.

Here, like in G.T. Leach, the statute-of-limitations deadline in the Arbitration Agreement’s Notice of Claims Provision fits in the category of matters that grow out of the dispute and bears on the arbitrator’s final disposition of the claims. See id. “The deadline does not determine the present existence, enforceability, or scope of the agreement to arbitrate the parties’ disputes, but instead imposes a procedural limit on the parties’ rights under that agreement.” Id. It bears on the arbitrator’s final disposition of Sanchez’s claims—specifically, whether the arbitrator can award Sanchez a remedy for his negligence claims in light of the provision’s language that, “[i]f notice is not timely received, such claim shall be barred.” See id. Thus, the parties’ dispute over the meaning and effect of the statute-of-limitations deadline in the Arbitration Agreement presents questions of procedural arbitrability, which both the United States Supreme Court and the Supreme Court of Texas have held are for the arbitrator, not the courts, to decide.³ See id. at 520; see also Gen. Warehousemen & Helpers Union Local 767 v. Albertson’s Distribution, Inc., 331 F.3d 485, 488 (5th Cir. 2003) (“Questions of timeliness are ones of procedural, not substantive, arbitrability.”).

*8 Citing a “narrow exception” to the rule that arbitrators, not courts, decide questions of procedural arbitrability, Sanchez contends that the trial court did not abuse its discretion in deciding the question of procedural arbitrability regarding the statute-of-limitations deadline. See Amir v. Int’l Bank of Commerce, 419 S.W.3d 687, 692 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The narrow exception cited by Sanchez has its origin in the United States Supreme Court’s decision of John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964). There, the Supreme Court stated that when procedural arbitrability matters are at issue, “a court [can] deny arbitration only if it [can] confidently be said not only that a claim was strictly ‘procedural’ ... but also that it should operate to bar arbitration altogether.” Id. at 557–58 (emphasis added).

In Bonsmara Natural Beef Co., LLC v. Hart of Texas Cattle Feeders, LLC, the Supreme Court of Texas discussed and applied the John Wiley exception, as interpreted by the Fifth Circuit. 603 S.W.3d 385, 399 (Tex. 2020). The court recognized: “The Fifth Circuit has ‘interpreted this rare exception to mean that a court will not order arbitration if ‘no rational mind’ could question [(1)] that the parties intended for a procedural provision to preclude arbitration and [(2)] that breach of the procedural requirement was clear.” Id. (quoting Gen. Warehousemen, 331 F.3d at 488 (brackets and emphasis added in Bonsmara)). “If a rational mind could differ as to the resolution of the procedural question, the court leaves the issue of procedural compliance to the arbitrator.” Perez v. Lemarroy, 592 F.Supp. 2d 924, 937 (S.D. Tex. 2008) (citing Gen. Warehousemen, 331 F.3d at 488).

The Bonsmara court analyzed whether the two-prong John Wiley exception applied to a matter of procedural arbitrability involving the availability of an arbitral forum. 603 S.W.3d at 398–99. The court held that “the first prong [was] unmet.” Id. at 399. The court stated, “[W]e cannot say no rational mind could question that the parties intended [the pertinent procedural provision] to preclude arbitration altogether if unmet.” Id. Because the first prong of the exception had not been met, the court held that it “need not address the second [prong].” Id. at 400.

Relevant to the first prong of the John Wiley exception, Appellants assert that the Notice of Claims Provision was not intended to be “a procedural mechanism to preclude arbitration.” To reiterate, the Notice of Claims Provision in the Arbitration Agreement requires:

All Disputes must be raised by a written notice of intent to arbitrate containing a statement setting forth the nature of the dispute, the amount involved, if any, and the remedy sought. The notice of intent to arbitrate must be received by the other party within any applicable statue [sic] of limitations period as if such claim were filed in court in the absence of this Arbitration Agreement. If notice is not timely received, such claim shall be barred. Notice must be sent by certified or registered mail, return receipt requested.

Written notice of intent to arbitrate by an employee must be forwarded to the Company’s Human Resources Director. Written notice of intent to arbitrate by the Company must be forwarded to the employee’s last known address, as provided by the employee to the Company.

Appellants argue that it is not reasonable to interpret this provision to bar a defending party’s arbitration request on the basis that it failed to “raise” its opponent’s claim in a notice of intent to arbitrate—which must contain specific information about the claim—before the expiration of the statute of limitations when the provision does not require the claimant to provide the defendant information about the claim in time for the defendant to meet the deadline. Appellants point out that they were not provided the type of information about Sanchez’s claim required by the provision until they received Sanchez’s original petition. The petition was filed on July 31, 2020, and alleged that Sanchez’s injury occurred on August 1, 2018, indicating that it was filed the day before the statute-of-limitations deadline. Appellants contend that this demonstrates the unreasonableness of interpreting the provision to bar arbitration because a defending party may not know that a claim exists or know the claim’s details in time to meet the deadline.

*9 Appellants also contend that their contractual interpretation—that the Notice of Claims Provision was not intended to preclude arbitration—is supported by the provision’s language barring the “claim,” meaning Sanchez’s claims, if the notice of intent to arbitrate is not provided before limitations expires. They emphasize that the provision does not state that arbitration will be barred as a consequence of non-compliance with the deadline. Appellants’ argument suggests that the purpose of the Notice of Claims Provision is not to bar the defending party from enforcing its contractual right of arbitration if the provision’s requirements are unmet but rather to provide an arbitral analogue to the process of filing a lawsuit in a judicial forum to initiate the prosecution of a claim.

Under Appellants’ reading, the notice of intent to arbitrate serves as the functional equivalent of a state-court petition. See TEX. R. CIV. P. 22 (“A civil suit in the district or county court shall be commenced by a petition filed in the office of the clerk.”). The type of information required to be included in the notice—such as the amount of the claim and the remedy sought—is analogous to the type of information included in a petition. See Hefley v. Sentry Ins. Co., 131 S.W.3d 63, 65 (Tex. App.—San Antonio 2003, pet. denied) (“The purpose of the plaintiff’s petition is to inform the court and the defendant of what its contentions will be at trial ....”). And like a petition, the notice of intent to arbitrate is the procedural vehicle used to preserve the plaintiff’s claims for limitations purposes. See Olson v. Success Motivation Inst., Inc., 528 S.W.2d 111, 113 (Tex. App.—Waco 1975, writ ref’d n.r.e.) (“The bringing of suit before the expiration of the statutory period interrupts the running of a statute of limitation.”). Appellants contend it is no more reasonable to require them to initiate and preserve Sanchez’s claims in the arbitral forum than it would be to require a defendant to file a petition to initiate and preserve a plaintiff’s claims against a defendant in a judicial forum.

In response, Sanchez relies on the second sentence in the provision, which states that “[t]he notice of intent to arbitrate must be received by the other party within any applicable statue [sic] of limitations period as if such claim were filed in court in the absence of this Arbitration Agreement.” He points out that the provision’s requirements are mutual, applying to both parties. Sanchez contends that the provision constitutes a condition precedent for arbitration requiring Appellants to provide him a notice of intent to arbitrate his claims before limitations expire. Sanchez asserts that, because there is no factual dispute that Appellants did not provide him notice before limitations ran, the trial court properly denied the motion to compel.

To support his position, Sanchez cites Grand Texas Homes, Inc. v. Hill as being “directly on point.” 02–07–00352–CV, 2008 WL 2168147 (Tex. App.—Fort Worth May 22, 2008, no pet.) (mem. op.). In Hill, the arbitration agreement required a demand for arbitration to be served on the opposing parties. See id. at *1–2. The appellant, Grand Homes, disputed whether the provision was a condition precedent for arbitration. Id. at *4. The court disagreed, concluding that, “under the plain language of the parties’ agreement, a timely demand for arbitration was a condition precedent to the enforceability of the arbitration clause.” Id.

Grand Homes also asserted that “it did not have the burden to initiate arbitration prior to the filing of the Hills’ suit.” Id. It argued that it was “the Hills’ responsibility—as claimants—to initiate arbitration proceedings.” Id. The court rejected that argument as well “because the plain language of the contract gives ‘either party’ the right to refer any claim or dispute to arbitration.” Id. The court then held that Grand Homes had failed to serve its arbitration demand within 100 days of receiving notice of the claim from the Hills. Id. at *5. The court affirmed the trial court’s denial of Grand Homes’ motion to compel arbitration. Id. at *6.

*10 We disagree with Sanchez that Hill is “directly on point” or that it negates Appellants’ interpretation of the Notice of Claims Provision. The provision in Hill, governing when an arbitration demand must be served on the opposing party, differs from the Notice of Claims Provision here. In Hill, the 100-day deadline for serving an arbitration demand ran from the date that “notice of a claim or dispute is delivered by either party to the other party.” Id. at *1. Thus, a party defending against a claim in Hill was not required to send an arbitration demand until after it had received notice of the other party’s claim. See id. Here, the Notice of Claims Provision contains no comparable language. In this respect, the contrasting language in Hill supports Appellants’ argument that the Notice of Claims Provision was not intended to preclude their arbitration demand as indicated by the lack of requirement for Sanchez to first provide them a notice of his claim.

Sanchez notes that Appellants had notice of his claim because he filled out two incident reports soon after he was injured. He also points out that his attorney sent a letter to Lupe Holdings in November 2018, notifying it of his July 2018 injury and warning that he would file suit if there was no response to the letter. Appellants counter that, even if they initially knew about the injury, they did not know with certainty that Sanchez would pursue a legal claim. With respect to the letter, Appellants point out that it did not provide the information required to be included in the notice of intent to arbitrate, such as the amount of Sanchez’s claim. That information was first provided to Appellants in Sanchez’s petition. And, regardless of whether the letter was received before limitations expired, the Notice of Claims Provision does not predicate the requirement of sending notice of intent to arbitrate on the receipt of information about the claim. Under Sanchez’s interpretation of the provision, Appellants would still have been barred from demanding arbitration if they did so after limitations had run, even if Sanchez’s attorney had not sent the letter regarding his claim and regardless of whether, as here, an arbitration demand was made in a suit filed on the eve of limitations. Appellants suggest that such a result highlights why Sanchez’s construction of the provision is incorrect.

Sanchez also argues that the trial court was permitted to determine whether the Notice of Claims Provision barred arbitration because there is no factual dispute that Appellants did not provide a timely notice of intent to arbitrate. For support, he cites Burke v. Roberson, a case involving mediation as a condition precedent to arbitration. 01-19-00920-CV, 2020 WL 7391707 (Tex. App.—Houston [1st Dist.] Dec. 17, 2020, no pet.) (mem. op.). There, this Court held that whether the condition precedent of mediation had been satisfied or waived should have been determined by the trial court, not the arbitrator, because the facts were undisputed regarding whether the mediation requirement had been met or waived. Id. at *4. However, in Burke, there was no dispute that the condition precedent of mediation was intended to preclude arbitration if not met. See id. In other words, unlike here, there was no dispute regarding the first John Wiley prong. When facts pertinent to whether a condition precedent is met or waived are undisputed, those undisputed facts are relevant to the second John Wiley prong, not the first. See Bonsmara, 603 S.W.3d at 399 (recognizing that second prong pertains to whether there was clear breach of provision intended to preclude arbitration). Therefore, our holding in Burke is of limited instruction in this case.⁴

*11 Given the parties’ arguments as discussed—and reading the provision as a whole—it is in no way clear that the parties intended the Notice of Claims Provision to function as a bar to arbitration rather than as a procedural mechanism to initiate and preserve a party’s claims within the arbitral forum. In other words, we cannot say that no rational mind could question that the parties’ intended the provision to preclude arbitration altogether if unmet. See Bonsmara, 603 S.W.3d at 399. Thus, the first prong of the John Wiley exception is not satisfied. See id. (recognizing that first prong of exception is whether parties intended for procedural provision to preclude arbitration). Because the first John Wiley prong is not met here, we need not address the second. See id.

In sum, we hold that whether the statute-of-limitations deadline in the Notice of Claims Provision bars Appellants’ arbitration demand is a matter of procedural arbitrability for the arbitrator to decide. See G.T. Leach Builders II, 458 S.W.3d at 522. As in G.T. Leach, here, the parties dispute the meaning and the effect of a contractual, statute-of-limitations deadline, a dispute that must be resolved by the arbitrator. See id. We further hold that the rare John Wiley exception, permitting a court to determine a question of procedural arbitrability, does not apply here. See Bonsmara, 603 S.W.3d at 399. Accordingly, we hold that the trial court abused its discretion when it denied Appellants’ motion to compel on the basis that Appellants had not complied with the Notice of Claims Provision by failing to timely invoke arbitration. If, on remand, the trial court maintains its determination that “the arbitration agreement is binding upon the parties” and answers any issues that may be pending—such as whether Sanchez’s claims are within the agreement’s scope or whether the agreement is unconscionable—in Appellants’ favor, then the question of whether Appellants made a timely demand for arbitration will be a matter of procedural arbitrability for the arbitrator to determine. See G.T. Leach Builders II, 458 S.W.3d at 523.

We sustain Appellants’ three issues.

Conclusion

We reverse the trial court’s June 9, 2021 order denying Appellants’ motion to stay judicial proceedings and compel arbitration. We remand the case to the trial court for further proceedings consistent with this opinion.

Footnotes
1	The Arbitration Agreement stated that it was subject to the FAA. See 9 U.S.C. §§ 1–16.
2	See TEX. CIV. PRAC. & REM. CODE § 51.016 (permitting interlocutory appeal from order denying motion to compel arbitration under FAA).
3	The court clarified that it “[did] not hold that disputes over a contractual deadline in an arbitration agreement will always present questions of procedural arbitrability that arbitrators must decide.” G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 522 (Tex. 2015). “If a party contends, for example, that a contractual deadline renders the agreement to arbitrate unconscionable or that the deadline operates to limit the scope of the claims the parties agreed to arbitrate, those contentions might raise issues of substantive arbitrability for the courts to decide.” Id. Here, as in G.T. Leach, Sanchez “asserts no such contentions.” See id.
4	Sanchez also cites Amir v. International Bank of Commerce in which this Court recognized that there is a “narrow exception” when a court, rather than the arbitrator, may decide issues of procedural arbitrability. 419 S.W.3d 687, 692 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Unlike here, the appellants in Amir did not dispute that the trial court, rather than the arbitrator, could determine a timeliness issue under the facts of that case. Instead, the parties disputed whether the appellants’ motion to compel arbitration functioned as a notice of intent to arbitrate. Id.

Court of Appeals of Texas, Houston (1st Dist.).

TEJAS TUBULAR PRODUCTS, INC., Appellant

v.

MAXIMO PALACIOS, Appellee

NO. 01-21-00136-CV

|

November 18, 2021

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Case No. 2020-76668

Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra.

MEMORANDUM OPINION

Veronica Rivas-Molloy Justice

Opinion issued November 18, 2021.

Appellant Tejas Tubular Products, Inc. (“Tejas Tubular”) appeals the trial court’s order denying its motion to compel arbitration of Appellee Maximo Palacios’ (“Palacios”) negligence claim. In its sole issue, Tejas Tubular contends the trial court erred in denying its motion. We reverse and remand.

Background

Palacios sued Tejas Tubular, a non-subscribing employer, for negligence stemming from an alleged hand injury he claims he sustained while cleaning a piece of machinery in the course and scope of his employment. Palacios sought recovery of actual damages, past and future lost wages, medical expenses, damages for pain and suffering, mental anguish, and impairment, punitive damages, and attorney’s fees.

Tejas Tubular filed an “Original Answer Subject to Arbitration Rights.” It then moved to compel arbitration under the Federal Arbitration Act (“FAA”), asserting Palacios entered into an arbitration agreement with Tejas Tubular and his negligence claim was subject to arbitration. Tejas Tubular attached to its motion the business records affidavit of its records custodian, Dimitra Goode, which included authenticated copies of (1) an “Acknowledgement of Receipt and Notice of Mutual Agreement to Arbitrate, Summary Plan Description, and Other Nonsubscriber Documents” signed by Palacios on November 30, 2017, and (2) the “Mutual Agreement to Arbitrate.”

Palacios filed a response to the motion to compel arbitration, claiming the Mutual Agreement to Arbitrate (“Arbitration Agreement”) explicitly excludes workers’ compensation claims from its scope of coverage and his negligence claim against Tejas Tubular, a non-subscribing employer, qualifies as a workers’ compensation claim. He thus argued that arbitration could not be compelled because his claim fell outside the scope of the Arbitration Agreement. Tejas Tubular replied asserting Section 6(c) of the Arbitration Agreement delegates the determination of the scope and arbitrability of any claim to the arbitrator. Tejas Tubular further argued Palacios’ negligence claim falls within the scope of the Arbitration Agreement.

The trial court denied Tejas Tubular’s motion to compel arbitration and Tejas Tubular appealed.¹

Standard of Review

We review interlocutory appeals of orders denying motions to compel arbitration for an abuse of discretion. Valerus Compression Servs., LP v. Austin, 417 S.W.3d 202, 207 (Tex. App.—Houston [1st Dist.] 2013, no pet.). We defer to the trial court’s factual determinations if they are supported by the evidence and review questions of law de novo. Id. We will reverse the trial court’s ruling only when “it acts in an arbitrary or unreasonable manner, without reference to any guiding rules or principles.” In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002, orig. proceeding) (per curiam).

Applicable Law

A party seeking to compel arbitration must establish that (1) a valid, enforceable arbitration agreement exists and (2) the claims asserted fall within the scope of that agreement. Valerus Compression Servs., 417 S.W.3d at 207; In re Provine, 312 S.W.3d 824, 828 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding). The existence of a valid arbitration agreement is a legal question. In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006). In interpreting an agreement to arbitrate, we apply ordinary contract principles. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003); In re Houston Progressive Radiology Assocs., PLLC, 474 S.W.3d 435, 443 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

When, as here, a party asserts a right to arbitration under the FAA, we determine whether a dispute is subject to arbitration under federal law. See Prudential Secs. Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex. 1995). Under the FAA, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. See id. (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983)). The policy in favor of enforcing arbitration agreements is so compelling that a court should compel arbitration “unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue.” Prudential Secs. Inc., 909 S.W.2d at 899 (emphasis in original) (citing Neal v. Hardee’s Food Sys., Inc., 918 F.2d 34, 37 (5th Cir. 1990)).

Arbitration Agreement

Tejas Tubular established the existence of an arbitration agreement, and Palacios does not challenge enforceability of the agreement. Thus, the question before us is whether Palacios’ claim is arbitrable and who determines this threshold issue of arbitrability. The parties’ Arbitration Agreement includes the following relevant provisions:

6. Scope of Arbitration Agreement

a. Claims Covered by this Agreement

This Agreement is mutual, covering all claims that Company or Claimant may have, including but not limited to, claims for negligence, gross negligence, and all claims for personal injuries, physical impairment, disfigurement, pain and suffering, mental anguish, wrongful death, survival actions, loss of consortium and/or services, medical and hospital expenses, expenses of transportation for medical treatment, expenses of drugs and medical appliances, emotional distress, exemplary or punitive damages and any other loss, detriment or claim of whatever kind and character.

b. Claims Not Covered by This Agreement

This agreement does not apply to:

....

(ii) Workers’ Compensation Benefits under the Texas Workers’ Compensation Act or any other similar state or federal law;

....

Nothing in this Agreement precludes the parties from agreeing to resolve claims that are otherwise not covered by this Agreement the same as if they were Covered Claims.

c. Arbitrability of Particular Dispute

Any question as to the arbitrability of any particular claim shall be arbitrated pursuant to the procedures set forth in this Agreement.

Analysis

Tejas Tubular contends the trial court erred by denying its motion to compel arbitration. It argues that, as a threshold matter, arbitration is mandated because Section 6(c) of the Arbitration Agreement delegates arbitrability determinations to the arbitrator. Thus, an arbitrator and not the trial court should determine whether Palacios’ negligence claim is subject to arbitration and whether the exception under 6(b) of the Arbitration Agreement applies. Beyond this threshold error, Tejas Tubular argues arbitration is mandated because Palacios’ claim falls within the scope of the Arbitration Agreement. In response, Palacios argues the trial court properly denied the motion to compel arbitration because his claim falls outside the scope of the Arbitration Agreement and its delegation provision. He asserts Section 6(b) of the Arbitration Agreement excludes workers’ compensation claims from its coverage and his negligence claim qualifies as a workers’ compensation claim.

“Whether parties have agreed to arbitrate is a gateway matter ordinarily committed to the trial court ....” Jody James Farms, JV v. Altman Group, Inc., 547 S.W.3d 624, 631 (Tex. 2018) (citing In re Rubiola, 334 S.W.3d 220, 224 (Tex. 2011)). “Parties can, however, agree to have the arbitrator determine gateway issues such as arbitrability of claims.” See RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 121 (Tex. 2018); see also Myrtle Consulting Grp., LLC v. Resulting Partners, Inc., No. 01-20-00095-CV, 2021 WL 2231248, at *8 (Tex. App.—Houston [1st Dist.] June 3, 2021, no pet.) (mem. op.). We enforce clauses delegating arbitrability when there is “clear and unmistakable” evidence establishing the parties’ intent to delegate the matter to the arbitrator. Henry Schein, Inc. v. Archer & White Sales, Inc., –– U.S. —, 139 S. Ct. 524, 527, 531 (2019) (holding FAA “allows parties to agree by contract that an arbitrator, rather than a court, will resolve threshold arbitrability questions”); RSL Funding, 569 S.W.3d at 120 (“Arbitration clauses that assign gateway questions such as the arbitrability of the dispute are an established feature of arbitration law.”) (citing Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68–69 (2010)). The “unmistakable clarity standard” serves the principle that “ ‘a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration’ and protects unwilling parties from compelled arbitration of matters they reasonably expected a judge, not an arbitrator, would decide.” Jody James Farms, 547 S.W.3d at 631 (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995)). To determine whether an agreement provides “clear and unmistakable evidence” of delegation, we consider “the specific language of the Arbitration Agreement.” Burlington Res. Oil & Gas Co., LP v. San Juan Basin Royalty Trust, 249 S.W.3d 34, 41 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Kaplan, 514 U.S. at 944).

Tejas Tubular contends Section 6(c) of the Arbitration Agreement constitutes a clear and unmistakable expression of the parties’ intent to have the arbitrator decide arbitrability. Section 6(c) states: “Any question as to the arbitrability of any particular claim shall be arbitrated pursuant to the procedures set forth in this Agreement.” Tejas Tubular argues that because the parties’ enforceable Arbitration Agreement clearly and unmistakably delegates arbitrability to the arbitrator, the trial court was required to compel arbitration to permit the arbitrator to decide this gateway arbitrability issue.

Palacios argues the delegation provision in Section 6(c) does not apply to his claim because the terms of the Arbitration Agreement exclude his specific claim from arbitration. He points to Section 6(b) of the Arbitration Agreement which states “[t]his agreement does not apply to ... Workers’ Compensation Benefits under the Texas Workers’ Compensation Act or any other similar state or federal law[.]” In support of his argument, Palacios relies on the Fifth Circuit’s decision in Archer & White Sales Co., Inc. v. Henry Schein, Inc., 935 F.3d 274 (5th Cir. 2019).

In Archer, the plaintiff sued the defendants for alleged violations of federal and Texas antitrust law and sought money damages and injunctive relief. See id. at 277. The parties’ contract included the following arbitration clause:

Disputes. This Agreement shall be governed by the laws of the State of North Carolina. Any dispute arising under or related to this Agreement (except for actions seeking injunctive relief and disputes related to trademarks, trade secrets, or other intellectual property of Pelton & Crane), shall be resolved by binding arbitration in accordance with the arbitration rules of the American Arbitration Association [ (AAA) ]....”

Id. The defendants invoked the FAA and moved to compel arbitration. See id. at 278–79. The plaintiff opposed the motion, arguing its complaint sought injunctive relief and the arbitration clause explicitly excluded actions seeking such relief from arbitration. See id. at 278. After the magistrate judge granted the motion, the district court vacated the order concluding the action fell within the arbitration clause’s express exclusion of actions seeking injunctive relief. See id. Relying on a then-established narrow exception, the Fifth Circuit affirmed, holding the threshold arbitrability question should be decided by the district court. See id. The United States Supreme Court vacated the lower court’s judgment, eliminated the relied-upon exception, and remanded the case for the Fifth Circuit to determine whether clear and unmistakable evidence existed of the parties’ intent to delegate the issue of arbitrability to the arbitrator. See Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 531 (2019).

The Court held that “[w]hen the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract.” Id. at 529. “In those circumstances, a court possesses no power to decide the arbitrability issue ... even if the court thinks that the [arbitrability claim] is wholly groundless.” Id.

On remand, the Fifth Circuit noted that while it was undisputed the parties’ agreement incorporated the AAA rules delegating the threshold arbitrability inquiry to the arbitrator for at least some category of cases, the parties disputed the relationship of the carve-out clause—exempting actions seeking injunctive relief from arbitration—and the incorporation of the AAA rules. See Archer, 935 F.3d at 280. The Fifth Circuit concluded

[T]he placement of the ‘carve-out’ here is dispositive. We cannot re-write the words of the contract. The most natural reading of the arbitration clause at issue here states that any dispute, except actions seeking injunctive relief, shall be resolved in arbitration in accordance with the AAA rules. The plain language incorporates the AAA rules—and therefore delegates arbitrability—for all disputes except those under the cave-out. Given that carve-out, we cannot say that the Dealer Agreement evinces a “clear and unmistakable” intent to delegate arbitrability.

Id. at 281–82 (emphasis in original).

Palacios argues that, just as in Archer, the terms of the Arbitration Agreement exclude his negligence claim from arbitration, and thus the delegation provision in Section 6(c) is inapplicable.² Archer is inapposite. Unlike the case before us, the agreement in Archer did not have an express delegation provision but instead incorporated AAA rules granting the arbitrator the power to determine his or her own jurisdiction, including questions related to the existence, scope, or validity of an arbitration agreement and the arbitrability of any claim. See id. at 279–80. The Fifth Circuit concluded that “[t]he parties could have unambiguously delegated [the arbitrability] question, but they did not, and we are not empowered to re-write their agreement.” Id. at 282. Here, by contrast, the specific language of the delegation provision and its placement under Section 6 of the Arbitration Agreement, entitled “Scope of Agreement,” reflect the parties’ clear and unmistakable intent that the arbitrator determine as a threshold matter the “arbitrability of any particular claim.” See RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 118 (Tex. 2015) (“No one phrase, sentence, or section [of a contract] should be isolated from its setting and considered apart from the other provisions.”) (quoting Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994)); Burlington Res. Oil & Gas, 249 S.W.3d at 41 (stating courts consider specific language of arbitration agreement in determining whether agreement provides “clear and unmistakable evidence” of delegation).

We further note that Palacios’ contractual interpretation is not supported by the express terms of the Arbitration Agreement. Holding the delegation provision in Section 6(c) applies solely to Section 6(a), as Palacios suggests, would require us to rewrite the parties’ agreement, which we cannot do. See Archer, 935 F.3d at 282. Section 6 of the Arbitration Agreement identifies two categories of claims: (1) “Claims Covered by this Agreement,” under Section 6(a) and (2) “Claims Not Covered by this Agreement,” under Section 6(b). In Section 6(b), the parties expressly refer to the claims in Section 6(a) as the “Covered Claims.” The delegation provision in Section 6(c), however, is not limited to “Covered Claims.” Instead, it provides that “[a]ny question as to the arbitrability of any particular claim shall be arbitrated pursuant to the procedures set forth in this Agreement.” (Emphasis added). The parties thus agreed to a broad delegation clause and they are bound by their agreement. See Jody James Farms, 547 S.W.3d at 631 (“Arbitration is a matter of contract, and that which the parties agree must be arbitrated shall be arbitrated.”).

Because the parties clearly and unmistakably delegated questions about “the arbitrability of any particular claim” to the arbitrator, the trial court abused its discretion by removing that issue from the arbitrator and denying Tejas Tubular’s motion to compel arbitration.

We sustain Tejas Tubular’s issue.³

Conclusion

We reverse the trial court’s order and remand the case to the trial court with instructions that it compel the parties to arbitration.

Footnotes
1	We have jurisdiction over the court’s interlocutory order. The Federal Arbitration Act (“FAA”) permits an interlocutory appeal from an order denying a motion to compel arbitration. See 9 U.S.C. § 16; see also TEX. CIV. PRAC. & REM. CODE § 51.016 (providing for appeal of interlocutory order denying motion to compel arbitration under FAA).
2	Palacios argues his negligence claim for damages is a claim for “Worker’s Compensation Benefits under the Texas Worker’s Compensation Act” excluded from the scope of the Arbitration Agreement. Tejas Tubular disputes this contention arguing Palacios’ claim is not a statutory claim, but rather a common-law negligence claim subject to arbitration.
3	Given our disposition of this threshold issue, we do not address Tejas Tubular’s argument that arbitration is mandated because Palacios’ claim falls within the scope of the arbitration agreement.

Court of Appeals of Texas, Houston (1st Dist.).

H-E-B, LP D/B/A JOE V’S SMART SHOP, Appellant

v.

MARIA SAENZ, Appellee

NO. 01-20-00850-CV

|

Opinion issued October 12, 2021

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Case No. 2019-63447

Panel consists of Justices Kelly, Landau, and Hightower.

MEMORANDUM OPINION

Peter Kelly Justice

This is an interlocutory appeal from an order denying a motion to compel arbitration. TEX. CIV. PRAC. & REM. CODE § 51.016. Appellee Maria Saenz sued H.E.B., LP d/b/a Joe V’s Smart Shop (“HEB”), a nonsubscriber to Texas’s statutory workers’ compensation system, claiming that HEB’s negligence and the condition of the premises caused her workplace injury. HEB moved to compel arbitration based on a clause in its benefits agreement. Saenz argued procedural unconscionability as a defense to the motion to compel arbitration. The trial court denied the motion to compel arbitration, and HEB appealed. We reverse.

Background

While working as a baker for HEB, Saenz was struck by a forklift inside the store. Her injuries required back surgery. After Saenz filed suit, HEB moved to compel arbitration under the Work Injury Benefit Plan, which provided, among other things:

Partners agree that any and all disputes, claims (whether tort, contract, statutory or otherwise) and/or controversies which relate, in any manner to this agreement, the Plan or the Trust, or to any on-the-job or occupational injury, death or disease of Partner shall be submitted to final and binding arbitration under the Federal Arbitration Act in accordance with the terms and conditions outlined below. The claims covered by this agreement to arbitrate include, but are not limited to, those claims which relate to the following: ... claims for damages or monetary [sic] ....”

HEB relied on Saenz’s electronic signature on the “Partner Acknowledgment, Indemnity Agreement and Accidental Death Beneficiary Designation Form,” which provided:

I have received, read, and understood the H-E-B Work Injury Benefit Summary Plan Description. I have had the opportunity to ask questions regarding this Plan. I understand my employment with H-E-B constitutes an acceptance of the terms of the Plan. My signature below confirms:

....

• I understand my acceptance of employment with H-E-B constitutes an acceptance of the benefits under the Plan and my agreement to arbitrate disputes.

In response to the motion to compel arbitration, Saenz asserted procedural unconscionability and provided an affidavit in which she averred that she does not read or write English and that she ordinarily relies on her children to translate for her. She argued that she was pressured to electronically sign the documents in English and did not have time to review the documents or have them translated. She said that she completed the documents at an HEB store, and when she asked questions, HEB supervisors and department managers told her to keep answering questions, that she was “doing it right,” and not to worry because she was “answering correctly.” Saenz averred that she did not understand the English-language documents, and nobody informed her that she was waiving her right to sue HEB if a conflict arose.

The trial court held an evidentiary hearing on the motion to compel arbitration. The court heard testimony from Saenz and from Gladys Makiya Suma-Kieta, who was a “team administrator assistant” at the grocery store where Saenz was employed.

Suma-Kieta explained the recruitment and hiring process. She said that all applications are initially received online because HEB does not have an in-person application process. The application is available online in both English and Spanish, and Spanish-speaking applicants are interviewed in Spanish. Suma-Kieta called successful candidates to inform them that they would receive New Hire Paperwork that would be sent to the email address provided by the applicant in the application. Suma-Kieta instructed the successful candidates to verify their email addresses and to ask for clarification or not sign the documents if they did not understand them. Suma-Kieta testified that successful applicants are given a unique identification number and password, both of which must be entered into the electronic New Hire Paperwork forms provided through the email sent to the email address provided by the applicant. Suma-Kieta said that New Hire Paperwork could be accessed only through the email sent to the successful applicants. According to Suma-Kieta, this was the exclusive way to complete the New Hire Paperwork.

After the forms are electronically signed, HEB receives a notification that the documents have been completed, and it schedules new employees to attend a pre-employment orientation meeting at which they can ask questions about the documents they previously signed. New employees may choose to attend an orientation meeting conducted by Suma-Kieta in English or an orientation meeting conducted by store manager Tony Palomin in Spanish. Suma-Kieta attended the orientation meeting conducted in Spanish to provide support to Palomin as needed. A copy of the Work Injury Benefit Plan summary is provided to new employees at the orientation meeting.

Suma-Kieta testified an email was sent to the email address provided on Saenz’s application, which belonged to Saenz’s son.¹ The email included a link to complete the required forms in English or in Spanish and a summary of the Work Injury Benefit Plan to review before signing the acknowledgement. HEB introduced copies of the electronic New Hire Paperwork electronically signed by Saenz on August 21, 2015.

Suma-Kieta attended the orientation meeting that Saenz attended, which was led by Palomin in Spanish. Saenz did not ask any questions. Suma-Kieta also testified that Saenz was given a summary plan description of the HEB Work Injury Benefit Plan in English and in Spanish when she came to work for HEB.

Saenz testified in Spanish with an interpreter. She said that Spanish is her primary language and that she does not speak, write, or understand English. Saenz testified that her son completed the online application for her and with her consent, and an HEB employee helped her with the new hire paperwork. Saenz testified that she had no access to her son’s email account.

Saenz testified that she never saw the email with the link to complete the new hire documentation in Spanish. She testified that she went to the HEB store, where she asked a supervisor, “Mr. Abel,” for help completing the New Hire Paperwork, and he directed another employee, “Mr. Jorge,” to help her.² Saenz testified that she consented to Jorge’s help with the computer. She said that Jorge completed the new hire paperwork for her, in English, asking her for personal information needed to complete the documentation. She said that Jorge did all the typing; she did not press a single key.

The trial court judge asked Saenz several questions, with consent of counsel.

Court: Did Joe V’s [HEB] or any of their employees give you the opportunity to have a Spanish application?

Saenz: No, sir.

Court: Did you ever ask Joe V’s [HEB] for a Spanish application?

Saenz: No. No.

Court: Did you ever complain to any of the folks conducting the application process that you did not understand the English application?

Saenz: Yes. I was making the comments to Mr. Abel Valdez that a lot of things I was not understanding; and he would just tell me, “Don’t worry, Maria. You’re already here.”

Court: Did any of the Joe V’s employees tell you anything else regarding the application?

Saenz: No.

Court: Did any of either ... Mr. Palomin [the store manager]—or Jorge or Abel or anybody else try to explain any of the documents to you?

Saenz: No, never. After they helped me out, filling out the applications, nobody made any other comment; and that’s when I made the comment to Mr. Abel that I didn’t understand a lot of the papers.

The trial court stated on the record that it “found Ms. Saenz to be very credible.” The court denied the motion to compel arbitration, and HEB appealed.

Analysis

On appeal, HEB argues in two issues that (1) it established that Saenz agreed to arbitrate disputes against HEB arising from on-the-job injuries and that her claims fall within the scope of that agreement, and (2) Saenz failed to establish that her agreement to arbitrate is unenforceable due to procedural unconscionability. Saenz argues that the circumstances under which she completed the electronic New Hire Paperwork forms when she was hired by HEB were unconscionable because she is illiterate in English, an HEB employee assisted her in completing the New Hire Paperwork in English but did not explain anything about arbitration to her, and she was not given an opportunity to review the relevant documents in Spanish.

I. Standard of review

We have jurisdiction to review an interlocutory order denying a motion to compel arbitration. See TEX. CIV. PRAC. & REM. CODE § 51.016 (FAA). We review a trial court’s order denying a motion to compel arbitration for abuse of discretion, deferring to factual findings that are supported by evidence and determining legal questions de novo. Parker v. Schlumberger Tech. Corp., 475 S.W.3d 914, 922 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Under the abuse of discretion standard, we will reverse the trial court’s ruling only when “it acts in an arbitrary or unreasonable manner, without reference to any guiding rules or principles.” In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (per curiam).

II. Arbitration

A party seeking to compel arbitration must establish (1) the existence of a valid arbitration agreement and (2) that the claims asserted are within the scope of that agreement. Venture Cotton Coop. v. Freeman, 435 S.W.3d 222, 227 (Tex. 2014); Parker, 475 S.W.3d at 922. “Upon such proof, the burden shifts to the party opposing arbitration to raise an affirmative defense to the agreement’s enforcement.” Venture Cotton Coop., 435 S.W.3d at 227. We apply ordinary contract principles to determine the existence of a valid agreement to arbitrate and any defenses. See In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 738 (Tex. 2005).

Ordinarily, we presume that an unambiguous contract reflects the intent of the contracting parties, and we enforce them as written. Venture Cotton Coop., 435 S.W.3d at 228; see Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494, 501 (Tex. 2015) (party to written agreement is presumed to have knowledge of and understand its contents); EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex. 1996) (same); see also In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex. 2007) (“Like any other contract clause, a party cannot avoid an arbitration clause by simply failing to read it.”). An arbitration agreement need not be signed so long as it is in writing and agreed to by the parties. See In re AdvancePCS Health L.P., 172 S.W.3d 603, 606 (Tex. 2005) (enforcing arbitration provision referenced and agreed to in numerous enrollment forms).

II. Unconscionability

A contract or arbitration provision may be avoided, however, if the party opposing enforcement proves a defense, such as unconscionability. See In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 677 (Tex. 2006). When a party asserts unconscionability as a defense to a motion to compel arbitration, the party must demonstrate that the unconscionability relates to the arbitration provision, not the contract as a whole. Royston, Rayzor, Vickery, & Williams, LLP, 467 S.W.3d at 501 (“[C]hallenges relating to an entire contract will not invalidate an arbitration provision in the contract; rather challenges to an arbitration provision in a contract must be directed specifically to that provision.”); In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001) (same).

“Unconscionability principles are applied to prevent unfair surprise or oppression.” Palm Harbor Homes, 195 S.W.3d at 679. “Substantive unconscionability refers to the fairness of the arbitration provision itself, whereas procedural unconscionability refers to the circumstances surrounding adoption of the arbitration provision.” Id. at 677.

“The principle [of procedural unconscionability] is one of preventing oppression and unfair surprise and not of disturbing allocation of risks because of superior bargaining power.” FirstMerit Bank, 52 S.W.3d at 757. “[T]he circumstances surrounding the negotiations must be shocking” to warrant a finding of procedural unconscionability. LeBlanc v. Lange, 365 S.W.3d 70, 88 (Tex. App.—Houston [1st Dist.] 2011, no pet.). “Absent fraud, misrepresentation, or deceit, a party is bound by the terms of the contract he signed, regardless of whether he read it or thought it had different terms.” In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005).

Gross disparity in bargaining position is not evidence of procedural unconscionability, nor is an employer’s “take it or leave it” offer to at-will employees procedurally unconscionable. In re Halliburton Co., 80 S.W.3d 566, 572 (Tex. 2002) (“Because an employer has a general right under Texas law to discharge an at-will employee, it cannot be unconscionable, without more, merely to premise continued employment on acceptance of new or additional employment terms.”); see Palm Harbor Homes, 195 S.W.3d at 678 (“[A]dhesion contracts are not per se unconscionable or void.”). A party’s testimony that he did not understand the significance of his signature on a contract is not evidence of procedural unconscionability. See McKinney, 167 S.W.3d at 835. Likewise, testimony that a party is unsophisticated, or that she would not have signed the arbitration agreement if the concept of arbitration had been explained to her does not establish procedural unconscionability. Palm Harbor Homes, 195 S.W.3d at 679.

Illiteracy in English is also insufficient to prove procedural unconscionability when the agreement is either explained to the party or translated into a language in which the party is literate. See Superbag Operating Co., Inc. v. Sanchez, No. 01-12-00342-CV, 2013 WL 396247, at *6 (Tex. App.—Houston [1st Dist.] Jan. 31, 2013, no pet.) (mem. op.). Compare Delfingen US-Tex., L.P. v. Valenzuela, 407 S.W.3d 791, 802 (Tex. App.—El Paso 2013, no pet.) (finding procedural unconscionability where employee was illiterate in English, no Spanish language version of arbitration agreement was available, and employee was misled to believe that arbitration agreement was an attendance policy), with ReadyOne Indus., Inc. v. Casillas, 487 S.W.3d 254, 262 (Tex. App.—El Paso 2015, no pet.) (Spanish language version available and no evidence of misrepresentation of any terms), and Superbag Operating Co., 2013 WL 396247, at *6 (company supplied Spanish version of policies to employee, employee signed Spanish version of agreements, and no evidence showed that company rebuffed employee’s attempt to obtain more information).

III. A valid agreement to arbitrate exists, and Saenz’s claims are within its scope.

In this case, Saenz does not argue that no valid agreement to arbitrate exists or that her claims are not within the scope of the agreement. In response to the motion to compel arbitration, she provided an affidavit in which she averred that she completed the new hire paperwork at an HEB store, but the forms were in English, and her requests for help or translation were rebuffed by HEB employees. At the hearing on the motion to compel arbitration, she testified that she completed the paperwork at an HEB store, and when she asked for help, Abel Valdez, a supervisor, asked another employee named Jorge to assist her. According to Saenz, Jorge input all the information, and she did not press a single key. She said that Jorge asked her for personal information, which she provided. She said that she told him she did not understand the forms, and she testified that he told her they concerned an attendance policy.

HEB relies on Saenz’s electronic signature of August 21, 2015, on the New Hire Paperwork.³ The file included many acknowledgements of distinct HEB policies, including an acknowledgment of HEB’s Work Injury Benefit Plan. At the bottom of the acknowledgment of HEB’s work injury benefit plan, the following statement and fill-in spaces appeared:

Tabular or graphical material not displayable at this time.

The Work Injury Benefit Plan was an alternative to HEB’s participation in the worker’s compensation program under the Texas Worker’s Compensation Act (“TWCA”). The Plan included an arbitration provision, which provides:

Partners agree that any and all disputes, claims (whether tort, contract, statutory or otherwise) and/or controversies which relate, in any manner to this agreement, the Plan or the Trust, or to any on-the-job or occupational injury, death or disease of Partner shall be submitted to final and binding arbitration under the Federal Arbitration Act in accordance with the terms and conditions outlined below.

The arbitration provision also provided: “Adequate consideration for this arbitration requirement is represented by, among other things, your eligibility for benefits under this Plan and the fact that it is mutually binding on both the Company and you.”

A. Electronic signature

In Aerotek, Inc. v. Boyd, the Texas Supreme Court discussed the type of evidence needed to prove the authenticity of an electronic signature under the Texas Uniform Electronic Transactions Act. 624 S.W.3d 199, 201 (Tex. 2021). The Texas Uniform Electronic Transactions Act provides that “[a]n electronic record or electronic signature is attributable to a person if it was the act of the person.” TEX. BUS. & COM. CODE § 322.009(a). “The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” Id. The Act defines “security procedure” as “a procedure employed for the purpose of verifying that an electronic signature ... is that of a specific person or for detecting changes or errors in the information in an electronic record.” Id. § 322.002(13). Security procedures may include “the use of algorithms or other codes, identifying words or numbers, encryption, or callback or other acknowledgment procedures.” Id. For example, security procedures may include:

requiring personal identifying information—such as a social security number or an address—to register for an account; assigning a unique identifier to a user and then tying that identifier to the user’s actions; maintaining a single, secure system for tracking user activities that prevents unauthorized access to electronic records; business rules that require users to complete all steps in a program before moving on or completing it; and timestamps showing when users completed certain actions.

Aerotek, 624 S.W.3d at 205–06. It is the “efficacy of the security procedure” that connects the electronic record to “the person to whom the record is attributed.” Id. at 206. “A record that cannot be created or changed without unique, secret credentials can be attributed to the one person who holds those credentials.” Id.

Suma-Kieta testified about the security procedures used by HEB. First, she said that the initial job application is available only online, not in paper form. She said that after interviews, she calls successful candidates to inform them that New Hire Paperwork will be sent to the email address provided by the applicant in the initial application. New employees are assigned a unique identification number and password, both of which must be entered into the New Hire Paperwork forms, which can only be accessed by a link in the email sent to the email address provided by the applicant in the initial application. She testified that this is the only way a new employee can complete the New Hire Paperwork. In addition, HEB offered printed copies of Saenz’s New Hire Paperwork, which showed her unique identification number.

Here, the New Hire Paperwork could not be created without unique, secret credentials, and therefore Saenz’s New Hire Paperwork, completed electronically, can be attributed to her. Therefore, the completion of the forms is considered her act, even if Jorge helped her physically input the information into the computer and without regard to whether she personally saw or read the electronic forms. See TEX. BUS. & COM. CODE § 322.009(a); Aerotek, 624 S.W.3d at 205–06. By enacting the Uniform Electronic Transactions Act, effective with safeguards, the Legislature announced the public policy of the state and provided the statutory framework for its implementation. See Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 665 (Tex. 2008) (“The Legislature determines public policy through the statutes it passes.”). Thus, we must conclude that Saenz electronically signed the documentation, including the acknowledgment of the Work Injury Benefit Plan, which includes the arbitration requirement. See Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535, 543 (Tex. 2021) (quoting Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015)) (“A court may not judicially amend a statute by adding words that are not contained in the language of the statute. Instead, it must apply the statute as written.”).

B. Acceptance by performance

In addition, Suma-Kieta testified that a Spanish language copy of the Work Injury Benefit Plan Summary Plan Description was provided to Saenz when she began work and that this document was typically provided to new employees at the in-person orientation session. Saenz subsequently began working for HEB, which under the Plan constitutes an acceptance of benefits. This is the kind of adhesory, take-it-or-leave-it offer that the Supreme Court has endorsed as effective to bind an employee to an arbitration agreement when the employer has provided notice of the benefit plan and informed the employee that continuing employment constitutes an acceptance of the agreement. See Halliburton, 80 S.W.3d at 572. Thus, under Texas Supreme Court precedent, we must conclude that by undertaking employment at HEB, Saenz accepted the arbitration agreement in the Work Injury Benefit Plan. See id.; see also Benson v. Chalk, 536 S.W.3d 886, 902 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (court of appeals bound to follow precedent of Texas Supreme Court).

C. On-the-job injury

Saenz’s claims in this case arise from an on-the-job injury. It is not disputed that these claims fall within the scope of the arbitration provision.

* * *

We conclude that the parties had a valid agreement to arbitrate and that Saenz’s claims are within the scope of that agreement.

IV. Saenz did not prove procedural unconscionability.

In the trial court and in this court, Saenz has argued that the arbitration agreement should not be enforced because the circumstances by which she completed the New Hire Paperwork were unconscionable. She argues that she is illiterate in English, that the New Hire Paperwork was not made available to her in Spanish, and that her questions about the substance of the New Hire Paperwork were rebuffed. The trial court stated on the record that it found Saenz to be credible. However, Texas Supreme Court precedent compels us to conclude that Saenz has not established procedural unconscionability in this case.

First, a party to a written agreement is presumed to have read and understood its contents. See Royston, Rayzor, Vickery, & Williams, 467 S.W.3d at 501. This is true whether she understood the consequence of her signature on the contract or not. See McKinney, 167 S.W.3d at 835. Second, illiteracy in English is insufficient to establish procedural unconscionability when a translation has been provided. See Superbag, 2013 WL 396247, at *6. Suma-Kieta testified—and the printed documents showed—that an option to complete the New Hire Paperwork in Spanish was provided in the email that was sent to Saenz’s son’s email address. In addition, a Spanish language version of the Work Injury Benefit Plan was provided to Saenz at the orientation meeting before she began work, and her undertaking of employment at HEB was considered acceptance of the agreement. See Halliburton, 80 S.W.3d at 572. Third, while there is some evidence that Saenz’s questions were rebuffed by Jorge and Abel, there is also undisputed evidence that Saenz asked no questions at the Spanish-language orientation session led by store-manager Palomin. As we have explained, under Texas Supreme Court precedent, the provision of a Spanish-language version of the Work Injury Benefit Plan is an independent basis upon which we must conclude that Saenz agreed to the arbitration requirement by undertaking employment with HEB. See id.

HEB’s procedures are not a model of transparency and disclosure, and they can lead a new employee to unwittingly waive the right to a jury trial. Nonetheless, we are not presented with shocking evidence of fraud, misrepresentation, or deceit, and we are bound by the policy determinations made by the Texas Supreme Court and the Texas Legislature. We hold that Saenz did not demonstrate procedural unconscionability.

Conclusion

We reverse the order of the trial court and render judgment compelling the parties to arbitrate Saenz’s claims.

Footnotes
1	The email address was Saenz’s son’s name @ the email service provider.
2	Saenz testified that she was at the store location where she later worked, but Suma-Kieta testified that the location where Saenz later worked was under construction at the time.
3	The New Hire Paperwork included an electronic signature agreement by which the newly hired employee agreed that typing in a unique “H-E-B Careers password” would have “the same force and effect” as a handwritten signature. The electronic signature agreement itself required the new employee to input a password, which appears as a series of asterisks in the printed copy of the New Hire Paperwork Digital File that was admitted into evidence at the hearing.

Court of Appeals of Texas, Houston (1st Dist.).

HARRIS COUNTY (SELF-INSURED), Appellant

v.

LEVENT DOGAN, Appellee

NO. 01-19-01006-CV

|

Opinion issued September 16, 2021

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Case No. 2017-14504

Panel consists of Justices Kelly, Landau, and Hightower.

MEMORANDUM OPINION

Peter Kelly Justice

This is an appeal in a workers’ compensation case. Appellee Levent Dogan suffered a heart attack while training to be a Harris County Sheriff’s Office deputy. He sought workers’ compensation benefits, but a hearing officer and an administrative appeals panel found that his heart attack was not compensable and that he had no disability. Dogan sought judicial review in the district court, and a jury found that he did have a compensable heart attack. The trial court entered judgment in Dogan’s favor, finding that he sustained a compensable injury in the form of a heart attack and that he was disabled from March 10, 2016 to July 10, 2016. Harris County appealed.

On appeal, Harris County argues that (1) the court erred by entering judgment that Dogan suffered a disability because he did not request a jury question on disability and none was submitted to the jury; (2) the court erred by submitting a liability question asking whether Dogan suffered an “injury”; and (3) the judgment is void because Dogan did not comply with a statutory requirement to file a copy of the proposed judgment with the Division of Workers’ Compensation (the “Division”) prior to entry.

We conclude that Dogan’s failure to timely file with the Division the proposed judgment that was actually signed by the court rendered the trial court’s judgment void. We dismiss this appeal for want of jurisdiction.

Background

On March 9, 2016, Dogan suffered a heart attack after running a mile as part of his training to become a Harris County Sheriff’s Office deputy. He was taken by ambulance to an emergency room, and later, he underwent heart catheterization and the placement of four stents.

Dogan filed a claim for workers’ compensation. The parties failed to resolve disputed issues at a benefits review conference, and a contested case hearing was held, specifically addressing whether Dogan’s heart attack was a result of the natural progression of underlying disease or was caused by the physical stress and exertion during the work-related training exercises. The hearing officer found the following facts:

....

3. [Dogan’s] heart attack was not caused by a specific event occurring in the course and scope of his employment with Harris County as a corrections officer.

4. The preponderance of the medical evidence regarding the heart attack indicates that [Dogan’s] work was not a substantial contributing factor of the attack.

5. The preponderance of the medical evidence regarding the heart attack indicates that [Dogan’s] heart attack was a result of a pre-existing condition and the natural progression of that pre-existing condition.

6. The heart attack of March 9, 2016 was a cause of [Dogan’s] inability to obtain and retain employment at wages equivalent to his preinjury wage during the period in dispute, from March 10, 2016 through July 10, 2016, but at no other times through the date of the contested case hearing in this matter.

The hearing officer concluded that: (1) Dogan “did not sustain a compensable heart attack on March 9, 2016,” and (2) “[b]ecause the claimed injury is not compensable, [Dogan] had no disability.”

The appeals panel adopted the hearing officer’s decision and order, and Dogan filed a lawsuit seeking judicial review. Dogan challenged the conclusions that his “injury was not compensable and that he had no disability.” He challenged the determinations that “he did not sustain a compensable heart attack on March 9, 2016 and a follow-on injury on March 15, 2016” and that “he did not sustain disability.” A jury found that Dogan had sustained a compensable heart attack and received an injury in the course and scope of his employment with Harris County.

On August 30, 3019, Dogan moved for entry of judgment on the verdict and attached a proposed final judgment. He served the motion and proposed final judgment on the General Counsel for the Texas Department of Insurance, Division of Workers’ Compensation (“the Division”) by certified mail, return receipt requested. On September 23, 2019, Dogan requested that the trial court make findings of fact and conclusions of law and filed a second, revised proposed final judgment, which was served on the Division seven days before the trial court entered judgment.

The trial court entered findings of fact and conclusions of law regarding disability and based on the hearing officer’s report. On September 30, 2019, the trial court entered final judgment that Dogan sustained a compensable injury in the form of a heart attack and that he was disabled from March 10, 2016 to July 10, 2016. Harris County appealed.

Analysis

Harris County raises three issues on appeal, but we focus on its third issue, which is dispositive. In its third issue, Harris County argues that the trial court’s judgment is entirely void because Dogan failed to provide the Division of Workers’ Compensation a copy of the proposed judgment prior to entry in compliance with the Labor Code. The Texas Labor Code provides:

The party who initiated a proceeding under this subchapter [Subchapter F. Judicial Review—General Provisions] or Subchapter G [Subchapter G. Judicial Review of Issues Regarding Compensability or Income or Death Benefits] must file any proposed judgment or settlement, including a proposed default judgment or proposed agreed judgment, with the [D]ivision not later than the 30th day before the date on which the court is scheduled to enter the judgment or approve the settlement.

TEX. LABOR CODE § 410.258(a) (emphasis added). “Division” means the “division of workers’ compensation of the department,” and “department” means “the Texas Department of Insurance.” TEX. LABOR CODE § 401.011(13-a) (department); id. § 401.011(16-a) (division). Section 410.258 “gives the Division the right to intervene in a judicial review proceeding.” Univ. of Tex. Sys. v. Thomas, 464 S.W.3d 754, 758 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Section 410.258(f) provides: “A judgment entered or settlement approved without complying with the requirements of this section is void.” TEX. LABOR CODE § 410.258(f).

Some courts of appeals have held that the notice requirement in section 410.258 does not apply to judgments entered after fully adversarial proceedings, such as contested summary-judgment motions or a trial. See, e.g., Ace Am. Ins. Co. v. Elmer, No. 05-19-00386-CV, 2020 WL 5525181, at *4 (Tex. App.—Dallas Sept. 15, 2020, pet. denied) (mem. op.); Clewis v. Safeco Ins. Co. of America, 287 S.W.3d 197, 202–03 (Tex. App.—Fort Worth 2009, no pet.); Tex. Property & Casualty Ins. Guaranty Ass’n for Petroinsurance Casualty Co. v. Brooks, 269 S.W.3d 645, 650 (Tex. App.—Austin 2008, no pet.). However, this court has held that compliance with the notice provision of section 410.258 “is both mandatory and jurisdictional, and failure to give the required notice renders a judgment void.” Metro. Transit Auth. v. Jackson, 212 S.W.3d 797, 800–01 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). We have held that the notice requirement applies “in all cases” and that “regardless of whether the trial court renders judgment after an adversarial proceeding ... the party initiating judicial review of the Division’s decision must send notice of the proposed judgment to the Division pursuant to section 410.258 or the trial court’s judgment is void.” Thomas, 464 S.W.3d at 759.

Dogan sent the Division notice of the first proposed judgment he filed on August 30, 2019, and he sent the Division notice of his second, revised proposed judgment on September 23, 2019. The trial court signed the second, revised proposed judgment on September 30, 2019. Although Dogan served both proposed judgments with the Division, he failed to timely file the proposed judgment that was actually signed by the court by serving it a mere seven days—not 30 days—before the date on which the court was scheduled to enter judgment. Because Dogan did not comply with section 410.258(a)’s mandatory and jurisdictional notice requirement, we hold that the judgment is void. We sustain Harris County’s third issue. See TEX. LABOR CODE § 410.258(a) (requiring “any” proposed judgment to be filed with the Division); Thomas, 464 S.W.3d at 759 (failure to comply with statute renders trial court judgment void); Jackson, 212 S.W.3d at 800–01 (same; statute is mandatory and jurisdictional).

Conclusion

We dismiss the appeal for lack of appellate jurisdiction. See Thomas, 464 S.W.3d at 760; Jackson, 212 S.W.3d at 799 (“[A] void judgment is a legal nullity, and the trial court retains plenary power to dispose of the case by rendering a valid final judgment.”).

Court of Appeals of Texas, Houston (1st Dist.).

J. MARCELINO E. CORNEJO GARCIA AND WIFE ERNESTINA RANGEL, AND CHILDREN, M.C.J., J.J.C., AND M.C., Appellants

v.

CITY OF WEST COLUMBIA, TEXAS, Appellee

NO. 01-20-00653-CV

|

July 27, 2021

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Case No. 82509-CV

Panel consists of Justices Goodman, Hightower, and Rivas-Molloy.

MEMORANDUM OPINION

Gordon Goodman Justice

Opinion issued July 27, 2021

J. Marcelino E. Cornejo Garcia sued the City of West Columbia for injuries he allegedly sustained as a result of his work on a municipal water and sewer project. His wife and children alleged derivative claims for loss of consortium. The City moved for traditional and no-evidence summary judgment on several grounds. The trial court granted the City’s summary-judgment motion without stating a particular basis. Cornejo Garcia appeals. We affirm the trial court’s summary judgment.

BACKGROUND

Prior Appeal

This is the second time this suit is before us. In the first appeal, we addressed the City’s plea to the jurisdiction, in which it asserted governmental immunity. The trial court denied the City’s jurisdictional plea, and we affirmed in part and reversed in part. City of W. Columbia v. Cornejo Garcia, No. 01-16-00139-CV, 2016 WL 5940481, at *1 (Tex. App.—Houston [1st Dist.] Oct. 13, 2016, no pet.) (mem. op.).

Cornejo Garcia was employed by Matula & Matula Construction, Inc., which contracted with the City to work on a municipal water and sewer project. Id. Cornejo Garcia subsequently sued the City alleging that he was injured due to exposure to contaminated water while working on the project.¹ Id. He asserted claims for intentional infliction of emotional distress, premises liability, and negligence. Id. His wife and children asserted derivative claims for loss of consortium.

In the prior appeal, which was interlocutory, we held that the trial court erred in denying the City’s plea to the jurisdiction with respect to Cornejo Garcia’s claims for intentional infliction of emotional distress and premises liability, and we dismissed both of those claims. Id. at *4. But we affirmed the trial court’s denial of the City’s jurisdictional plea with respect to Cornejo Garcia’s negligence claim. Id.

Cornejo Garcia alleged that the City was negligent in two ways. First, he alleged that the City had exercised control over the water and sewer project as a whole to such an extent that the City was vicariously liable for his employer’s failure to provide him with a respirator and other necessary safety equipment that would have prevented his injuries. Id. at *1, *3. Second, he alleged that the City maintained control over motor-driven water pumps in particular and that the City failed to adequately maintain these pumps. Id. at *3. Had the City adequately maintained the pumps, Cornejo Garcia alleged, they would have drained the contaminated water from the project site and thereby prevented his exposure. Id.

In its plea to the jurisdiction, the City argued that it merely had a contractual relationship with Cornejo Garcia’s employer and that the City had not exercised control over his employer’s work. See id. at *3. The City further argued that Cornejo Garcia’s water-pump claim was in actuality one for non-use of the pumps. See id. Under these circumstances, the City argued, it had not waived its governmental immunity. Id.

We concluded that the trial court had not erred in denying the City’s jurisdictional plea as to either of the types of negligence alleged by Cornejo Garcia. Id. at *3–4. As to his safety-equipment claim, we held that the City did not conclusively show it had not exercised control over the project as a whole to such an extent as to subject it to liability. Id. at *3. As to his water-pump claim, we similarly held that the City did not conclusively show it had not used the water pumps. Id. at *4. In both cases, our ruling was based on the record as it then existed. Id. at *3–4.

Present Appeal

Several months after our mandate issued, the City moved for traditional and no-evidence summary judgment. The City argued that there was no evidence that it exercised any control over Cornejo Garcia’s employer or its employees or that any City personnel or equipment were used in the water and sewer project. Thus, the City argued, Cornejo Garcia could not show that the City had waived its governmental immunity under the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE § 101.021 (waiving governmental immunity for negligent conduct of government employees and injuries caused by use of tangible property). The City also submitted an affidavit made by the City Manager and a copy of the contract between the City and Cornejo Garcia’s employer as evidence in support of the City’s contentions that it did not control the project or provide personnel or equipment. In the City Manager’s affidavit, she stated that the City did not provide any personnel or equipment for use in the project. The contract stated that Cornejo Garcia’s employer was responsible for all work done under the project.

In opposition, Cornejo Garcia filed his own affidavit, in which he stated that between one to three City employees were always present while he worked on the project. According to Cornejo Garcia, these City employees provided him with equipment, like connectors and wrenches, whenever he lacked it. Cornejo Garcia further stated that a pump was used to clear his work area of dirty water. Sometimes his employer provided this water pump. Other times the City provided the water pump. Cornejo Garcia stated that City employees sometimes operated the pump. Cornejo Garcia signed his affidavit by thumbprint. Two employees of a nursing and rehabilitation center, in turn, signed affidavits stating they witnessed Cornejo Garcia affix his thumbprint to his affidavit.²

Cornejo Garcia also submitted photos of the work site and personnel. But the photos do not identify the personnel or equipment depicted.

The City later filed an amended motion for summary judgment. Relying on its contract with Cornejo Garcia’s employer, the City again argued that it exercised no control over the water and sewer project. The City emphasized that the contract required Cornejo Garcia’s employer to:

• provide trench protection for trenches deeper than five feet;

• exercise precautions for the safety of persons and bear responsibility for all damages to persons resulting from the work;

• furnish all necessary equipment, labor, and supervision; and

• assume responsibility for all work done under the contract.

The City further argued that Cornejo Garcia’s affidavit and photographs did not create a genuine issue of material fact as to the City’s control of Cornejo Garcia’s employer or Cornejo Garcia because the mere presence of City personnel is not evidence of control as a matter of law. But the City did not address Cornejo Garcia’s statements that City employees supplied him with equipment or used water pumps.

Instead, the City argued that Cornejo Garcia had admitted that his claim with respect to water pumps was that the City had not used them. In support, the City cited Cornejo Garcia’s responses to requests for admissions. In these responses, Cornejo Garcia admitted that he contended the City had failed to use a pump that otherwise would have drained the contaminated water from the site.

The City also added two additional grounds for summary judgment. First, it argued that Cornejo Garcia had no evidence that the water at the worksite contained a toxin capable of causing his injuries or that it did cause his injuries. Second, it argued that Cornejo Garcia’s exclusive remedy is workers’ compensation. As Cornejo Garcia failed to exhaust the process for workers’ compensation benefits, the City argued that the trial court lacks jurisdiction over his claims.

Finally, the City argued that any loss of consortium claim was derivative of Cornejo Garcia’s negligence claim and thus failed for the same reasons.

Cornejo Garcia did not file any additional evidence in response to the City’s amended summary-judgment motion.

The trial court granted the City’s amended traditional and no-evidence motion for summary judgment. The court did not specify a particular basis for summary judgment; it stated only that Cornejo Garcia and his family had “failed to establish a genuine issue of material fact in support of their claims.”

Cornejo Garcia, his wife, and his children appeal.

DISCUSSION

Cornejo Garcia contends that he pleaded facts sufficient to show that the City has waived its governmental immunity. Because he has pleaded sufficient facts to show waiver of immunity, Cornejo Garcia asks that we reverse the trial court’s summary judgment. Liberally construing his brief, Cornejo Garcia contends that genuine issues of material fact exist concerning the City’s involvement in the water and sewer project that preclude summary judgment. But Cornejo Garcia’s brief does not address the City’s alternative summary-judgment arguments premised on causation or the workers’ compensation statute.

Standard of Review

We review a summary judgment de novo. Farmers Grp. v. Geter, 620 S.W.3d 702, 708 (Tex. 2021). Traditional summary judgment is required when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). No-evidence summary judgment is required when the movant challenges one or more essential elements of the nonmovant’s claims or defenses and the nonmovant fails to respond with evidence raising a genuine issue of material fact as to the challenged elements. TEX. R. CIV. P. 166a(i).

Applicable Law

The City moved for summary judgment on multiple grounds. The trial court granted summary judgment in favor of the City without specifying the particular ground or grounds. To prevail on appeal under these circumstances, Cornejo Garcia must negate all possible grounds on which the trial court’s summary judgment could have been based. Miner Dederick Constr. v. Gulf Chem. & Metallurgical Corp., 403 S.W.3d 451, 463 (Tex. App.—Houston [1st Dist.] 2013, pet. denied); see also Hanson v. Republic Ins. Co., 5 S.W.3d 324, 327 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (appellate court may affirm on any meritorious ground when summary-judgment motion raises multiple grounds for summary judgment).

Analysis

Failure to Exhaust Administrative Remedies

Assuming that Cornejo Garcia qualifies as an employee, rather than an independent contractor, the City argues that the trial court and this court lack jurisdiction over Cornejo Garcia’s negligence claim because Cornejo Garcia failed to exhaust his administrative remedies under Texas’s workers’ compensation statute. In support of this argument, the City asserts that both it and Cornejo Garcia’s employer were subscribers under the workers’ compensation statute, Cornejo Garcia filed a workers’ compensation claim against his employer but did not complete the administrative appeals process relative to his claim, and he did not file a workers’ compensation claim against the City at all within the one-year statutory deadline. See TEX. LAB. CODE §§ 408.001, 409.003(2) (workers’ compensation is exclusive remedy for work-related injury when employee is covered by workers’ compensation insurance, and claim for workers’ compensation must be made within one year of when employee knew or should have known that occupational disease was related to his employment).

We agree that the workers’ compensation statute generally requires exhaustion of remedies as a prerequisite to suit. LAB. § 410.251; see Mendoza v. Old Republic Ins. Co., 333 S.W.3d 183, 185–86 (Tex. App.—El Paso 2010, pet. denied) (summarizing workers’ compensation process). But on its own terms, the City’s exhaustion argument turns on the existence of jurisdictional facts, namely that:

• Cornejo Garcia’s employer had workers’ compensation insurance;

• the City had workers’ compensation insurance;

• Cornejo Garcia filed a workers’ compensation claim under his employer’s policy and received an adverse decision but failed to appeal from it; and

• Cornejo Garcia did not file a workers’ compensation claim under the City’s policy.

The City’s brief does not contain citations to the record conclusively showing any of these jurisdictional facts for purposes of summary judgment. Thus, we cannot affirm the trial court’s summary judgment on the basis of the City’s exhaustion argument even though Cornejo Garcia has not addressed it. See Croysdill v. Old Republic Ins. Co., 490 S.W.3d 287, 296 (Tex. App.—El Paso 2016, no pet.) (record must affirmatively reflect failure to exhaust administrative remedies); Mendoza, 333 S.W.3d at 187 (reversing summary judgment because defendant workers’ compensation carrier did not prove failure to exhaust as matter of law).

Causation in the Context of a Toxic Tort Claim

Causation is an essential element of negligence. IHS Cedars Treatment Ctr. of DeSoto, Tex. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). In a toxic tort or chemical exposure lawsuit, like this one, a plaintiff must present evidence that the toxin or chemical at issue can cause the specific injuries he alleges in human beings in general and that it caused his injuries in particular. E.g., Bostic v. Georgia-Pac. Corp., 439 S.W.3d 332, 348 (Tex. 2014) (asbestos/mesothelioma); Merck & Co. v. Garza, 347 S.W.3d 256, 262 (Tex. 2011) (prescription drug/heart attack); Brookshire Bros. v. Smith, 176 S.W.3d 30, 36–37 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (commercial cleaning products/reactive airways dysfunction syndrome); Daniels v. Lyondell–Citgo Ref. Co., 99 S.W.3d 722, 725–26 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (benzene/lung cancer); Coastal Tankships v. Anderson, 87 S.W.3d 591, 601–02 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (naphtha/bronchiolitis obliterans organizing pneumonia). This necessarily requires a plaintiff to prove he was exposed to the toxin or chemical in question. E.g., Lockett v. HB Zachry Co., 285 S.W.3d 63, 67–74 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (affirming summary judgment as plaintiff did not offer proof of exposure to benzene and thus could not show it caused his leukemia).

Cornejo Garcia alleges that he was exposed to contaminated water while working on the City’s water and sewer project, but he does not identify a particular contaminant. Cornejo Garcia further alleges that this unidentified contaminant caused his injuries, which include paralysis, Guillain-Barré syndrome, and deep vein thrombosis.

In its amended summary-judgment motion, the City asserted that Cornejo Garcia had failed to identify a contaminant and had no evidence that his exposure caused his injuries. Cornejo Garcia did not respond to this aspect of the City’s motion. On appeal, Cornejo Garcia does not cite any evidence of causation. We therefore hold that the trial court did not err in granting no-evidence summary judgment as to Cornejo Garcia’s negligence claim.

Derivative Claims for Loss of Consortium

A claim for loss of consortium is derivative of a claim for personal injury. Reagan v. Vaughn, 804 S.W.2d 463, 467 (Tex. 1990). Thus, the trial court also did not err in granting summary judgment as to the claims of Cornejo Garcia’s wife and children. See id. (defense to personal-injury claim is defense to consortium claim).

CONCLUSION

We affirm the trial court’s judgment.

Footnotes
1	Cornejo Garcia also sued his employer. They settled their disputes.
2	In his brief, Cornejo Garcia’s counsel states that Cornejo Garcia “has been continuously paralyzed since the occurrence and has not been able to communicate with counsel and translators or family members.” As the City did not obtain rulings on the admissibility or legal sufficiency of Cornejo Garcia’s affidavit in the trial court and does not raise these issues on appeal, we note but disregard them.

Court of Appeals of Texas, Houston (1st Dist.).

IN RE Reynaldo MORALES, Relator

NO. 01-20-00794-CV

|

Opinion issued July 13, 2021

Original Proceeding on Petition for Writ of Mandamus

Attorneys and Law Firms

Reynaldo Morales, Pro Se.

Barbara Ann Quigg, for Real party in interest.

Panel consists of Justices Goodman, Hightower, and Rivas-Molloy.

MEMORANDUM OPINION

PER CURIAM

Relator, Reynaldo Morales, has filed a document entitled “Emergency Motion to Stay,” but he has not provided an appellate case number and all previously-filed appeals and original proceedings have been finally adjudicated. Accordingly, the Court construed this motion to be a petition for writ of mandamus.¹

Morales mentions harassment and persecution that he has experienced, but he does not complain of a ruling by the trial court. Morales attaches the following to his petition:

• A November 10, 2020 letter from this Court acknowledging receipt of a communication from Morales concerning appellate cause number 01-17-00474-CV, a case that is no longer pending, but noting that we no longer have jurisdiction to act in that cause;

• Postcards from this Court advising Morales of the denial of motions for rehearing in appellate cause number 01-17-00474-CV;

• This Court’s December 18, 2014 opinion in appellate cause number 01-14-00429-CV affirming the trial court’s dismissal of his appeal based on a grant of the defendant’s plea to the jurisdiction and motion to dismiss;

• A November 9, 2015 notice from the Supreme Court of the United States advising that Morales’s petition for certiorari had been denied;

• This Court’s mandate issued on June 5, 2015 in appellate cause number 01-14-00429-CV, affirming the trial court’s judgment;

• Worker’s compensation documentation from the Texas Department of Insurance, Division of Workers’ Compensation;

• Morales’s motion for en banc reconsideration in an unspecified case;

• A letter from this Court advising Morales that this Court no longer has jurisdiction in appellate cause number 01-19-00051-CV and that his communication was received and placed in the file, but no action would be taken;

• An order issued on April 30, 2020, stating that the mandate issued in appellate cause number 01-19-00051-CV on February 14, 2020, and the court no longer has jurisdiction over the appeal and thus, no further action would be taken on any filings;

• This Court’s mandate issued in appellate cause number 01-19-00051-CV on February 14, 2019, affirming the trial court’s judgment;

• This Court’s January 28, 2020 notice that the Court had denied Morales’s motion to reconsider and motion for rehearing in appellate cause number 01-19-00051-CV;

• The December 10, 2008 “Decision and Order” issued by the Texas Department of Insurance, Division of Workers’ Compensation.

Many of these documents concern previous appeals or original proceedings that have been adjudicated and are no longer active cases. But Morales has presented no argument, citation to the record, or complaint concerning any ruling or action by the trial court.

Because Morales presents no complaint about a trial court ruling or an action that requires this Court to enforce its jurisdiction, we have no power to issue relief. See TEX. GOV’T CODE § 22.221(a)-(b).

We deny the petition. Any pending motions are dismissed as moot.

Footnotes
1	The underlying case is Reynaldo Morales v. Travelers Indemnity Company of Connecticut, cause number 2013-54065, pending in the 165th District Court of Harris County, Texas, the Honorable Ursula Hall presiding.

Court of Appeals of Texas, Houston (1st Dist.).

CHG HOSPITAL BELLAIRE, LLC, Appellant

v.

SEKETA JOHNSON, Appellee

NO. 01-20-00437-CV

|

Opinion issued April 20, 2021

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Case No. 2019-58375

Panel consists of Justices Goodman, Landau, and Guerra.

MEMORANDUM OPINION

Sarah Beth Landau Justice

Seketa Johnson sued CHG Hospital Bellaire, LLC for tort claims seeking damages for injuries she sustained in an on-the-job accident. CHG-Bellaire moved to stay litigation, and the trial court denied the motion. CHG-Bellaire then petitioned this Court for a writ of mandamus, and we denied the petition. CHG-Bellaire moved to compel arbitration under the Federal Arbitration (FAA), and the trial court denied the motion. CHG-Bellaire appealed, arguing that the trial court erred in denying its motion to compel arbitration because the parties entered into an enforceable arbitration agreement and Johnson’s claims fell within the scope of claims covered by the agreement.

We affirm.

Background

In August 2019, Johnson sued CHG-Bellaire for negligence, premises liability, and gross negligence, alleging that she had sustained injuries while training as a nurse at a hospital operated by CHG-Bellaire. Johnson and her trainer had to physically lift and adjust a “very heavy” patient on the bed because the hospital did not have the equipment ordinarily used to move patients. The trainer suddenly grabbed the bed sheets and began pulling the patient up the bed without first warning Johnson. Trying to catch the patient, Johnson quickly pulled the other side of the bed sheets and suddenly felt a pop in her spine followed by pain. She immediately stopped pulling the bed sheets and told her trainer about the injury.

Physicians treated Johnson’s injuries and advised her to not lift anything weighing more than 10 pounds until she fully recovered. Although Johnson had not fully healed, CHG-Bellaire placed her back on regular rotation. Johnson told her superiors that she could not perform the same duties because lifting patients violated her doctor’s orders. Despite her explanation, CHG-Bellaire still required her to lift patients.

As Johnson was caring for a patient, the patient became dizzy and started to fall. Johnson rushed to prevent the patient from falling and she suddenly felt a “pull and pain” in her spine. Since the incidents, the pain in her back continued to worsen and prevented her from performing tasks she could perform before.

CHG-Bellaire answered the suit with special exceptions, a general denial, and affirmative defenses, asserting that Johnson’s claims were subject to arbitration.

CHG-Bellaire then moved to stay the litigation. The trial court denied the motion, and CHG-Bellaire petitioned our Court for a writ of mandamus, requesting that we stay the litigation proceedings and compel arbitration. We denied the petition, noting a material defect:

Relator asserts in its petition for writ of mandamus that it seeks relief from the trial court’s denial of relator’s “motion to stay litigation and compel arbitration” but the order attached to the petition does not refer to a motion to compel arbitration.

In re CHB Hosp. Bellaire, LLC, No. 01-20-00278-CV, 2020 WL 2026478, at *1 n.2 (Tex. App.—Houston [1st Dist.] Apr. 28, 2020, no pet.) (orig. proceeding) (per curiam).

Then, CHG-Bellaire moved to compel arbitration, followed by a supplemental motion to compel arbitration and an amended motion to compel arbitration. CHG-Bellaire argued that the parties had entered into an enforceable arbitration agreement. It also argued that Johnson’s claims for injuries during her employment fell within the scope of arbitral claims under the agreement.

CHG-Bellaire attached evidence to its motion to show the existence and scope of an enforceable arbitration agreement. The evidence included copies of the Employee Injury Benefit Plan (EIBP), the Employee Handbook, and the Employment Dispute Resolution Agreement (EDRA).

Section 5(a)(i) of the EIBP included a provision entitled “Mutual Agreement to Arbitrate,” addressing the scope of the arbitration agreement and the claims covered by the agreement:

This Agreement is mutual, covering all claims that Company or Claimant may have which arise from: Any injury suffered by Claimant while in the Course and Scope of Claimant’s employment with Company, including but not limited to, claims for negligence, gross negligence, and all claims for personal injuries, physical impairment, disfigurement, pain and suffering, mental anguish, wrongful death, survival actions, loss of consortium and/or services, medical and hospital expenses, expenses of transportation for medical treatment, expenses of drugs and medical appliances, emotional distress, exemplary or punitive damages and any other loss, detriment or claim of whatever kind and character.

Section 508 of the EDRA included a provision articulating the claims covered by the arbitration agreement:

The Company and you mutually consent and agree to the resolution by arbitration of all claims or disputes (Claim(s)), whether or not arising out of your employment (or its termination), that the Company may have against you or that you may have against the Company or its officers, directors, members, owners, shareholders, partners, employees or agents, past or present, in their capacity as such or otherwise.... The Claims covered by this Agreement include, but are not limited to, claims for wages or other compensation due, claims for breach of any contract or covenant (express or implied); tort claims; equitable claims; claims for discrimination (including, but not limited to, race, color, sex, religion, national origin, age, marital status, or medical condition, handicap or disability); claims for retaliation or harassment; all common law claims and claims for violation of any federal, state, or other governmental law, statute, regulation, or ordinance, except for claims identified below.

Section 509 of the EDRA excludes certain claims, including worker’s compensation claims, from arbitration:

Claims you may have for workers’ compensation, unemployment compensation, or state disability insurance benefits are not covered by this Agreement.... This Agreement also does not apply to any Claim that an applicable federal statute expressly states cannot be arbitrated.

Similarly, the Employee Handbook included the same arbitration provision referenced in the EDRA:

Agreeing to the Employment Dispute Resolution Program Agreement (Agreement) electronically or otherwise constitutes your agreement to be bound by the EDR Program. Likewise, the Company agrees to be bound by this same program. This mutual agreement to arbitrate claims means that both you and the Company are bound to use the EDR Program as the sole means of resolving covered claims and disputes and agree to forego any right either may have to a jury trial on issues covered by the EDR Program. However, no remedies that otherwise would be available to you or the Company in a court of law will be forfeited by virtue of the agreement to use and be bound by the EDR Program.

CHG-Bellaire attached two affidavits to its motion. The first was from I. Tai, Escalation Manager for Saba TalentSpace, an onboarding platform. Tai testified that newly hired CHG-Bellaire employees had to access, review, and acknowledge several employment agreements containing arbitration provisions through the online platform. Each employee had to create a secure and unique username and password, which was encrypted and stored in the Saba database. After successfully entering login information, the system prompts the employee to complete the Employee Handbook course and the EIBP course. After the employee completes the course, the Saba database tests the employees understanding of the course content, generates transcript reports, and displays the employee’s scores.

Tai also testified that Johnson created a username and password on Saba, accessed various employment documents, and completed the Employee Handbook course and the EIBP course on July 8, 2019. Saba’s records showed that Johnson successfully answered all five questions in the Employee Handbook course and all three questions in the EIBP course.

CHG-Bellaire presented another affidavit from K. Mendez, the HR Director for the Cornerstone Healthcare Group Holdings, Inc., the parent company of CHG-Bellaire. Mendez testified that she was responsible for the “overall processes and implementation of policies involving documentation related to onboarding” new employees. Mendez confirmed that the Saba reports showed that Johnson had acknowledged reviewing the Employee Handbook, the EDRA, and the EIBP.

Johnson moved to strike the motion to compel arbitration, arguing that the arbitration agreements exclude workers’ compensation claims and that evidence did not establish that a valid arbitration agreement existed because she testified at her deposition that she could not recall acknowledging or agreeing to the arbitration agreements.¹

CHG-Bellaire replied to Johnson’s motion, contending that her claims fell within the scope of the arbitration agreements because she sought damages for personal injuries for her tort claims and did not allege any claims under the Texas Workers Compensation Act. It also contended that the evidence established the existence of enforceable arbitration agreements and that our denial of mandamus relief did not constitute “law of the case” or address the merits.

The trial court denied CHG-Bellaire’s motion to compel arbitration without a hearing.

CHG-Bellaire appealed.²

Arbitration Agreement

CHG-Bellaire contends that the trial court erred in denying its motion to compel arbitration because the parties entered into enforceable arbitration agreement and the agreement covered Johnson’s claims. In response, Johnson asserts that CHG-Bellaire failed to establish that a valid arbitration agreement existed because she testified under oath that, based on her personal recollection, she did not execute the purported agreement. She argues that the parties lacked a meeting of the minds to form a valid agreement. She also asserts that CHG-Bellaire failed to establish that the purported arbitration agreement covered her claims because the agreement explicitly excludes workers’ compensation claims.

A. Standard of review

“We review interlocutory appeals of orders denying motions to compel arbitration for an abuse of discretion, deferring to the trial court’s factual determinations if they are supported by the evidence and reviewing questions of law de novo.” Valerus Compression Servs., LP v. Austin, 417 S.W.3d 202, 207 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Under this standard, we will reverse the trial court’s ruling only when “it acts in an arbitrary or unreasonable manner, without reference to any guiding rules or principles.” In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (per curiam). We construe the record in a light favorable to support the trial court’s ruling. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 233 (Tex. 2003); In Estate of Guerrero, 465 S.W.3d 693, 701 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc).

B. Applicable law

A court cannot order arbitration without an agreement to arbitrate. See Freis v. Canales, 877 S.W.2d 283, 284 (Tex. 1994) (per curiam). Thus, despite strong presumptions that favor arbitration, a valid agreement to arbitrate is a settled, threshold requirement to compel arbitration. See In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737–38 (Tex. 2005) (orig. proceeding). The party moving to compel arbitration has the initial burden of proof to establish the arbitration agreement’s existence and to show that the claims asserted against it fall within the arbitration agreement’s scope. Rachal v. Reitz, 403 S.W.3d 840, 843 (Tex. 2013).

If the movant establishes that a valid arbitration agreement exists and that the claims fall within the agreement, a presumption arises in favor of arbitrating those claims and the party opposing arbitration has the burden to prove a defense to arbitration. Royston, Rayzor, Vickery & Williams, LLP v. Lopez, 467 S.W.3d 494, 499–500 (Tex. 2015).

A trial court may determine whether to compel arbitration by solely relying on the parties’ affidavits, pleadings, discovery, and stipulations. In re MHI P’ship, Ltd., 7 S.W.3d 918, 922 (Tex. App.—Houston [1st Dist.] 1999, no pet.). An evidentiary hearing is not required before the trial court makes its determination. In re Jim Walter Homes, Inc., 207 S.W.3d 888, 896 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

C. Notice to form an agreement to arbitrate claims

Whether a valid arbitration agreement exists is a legal question that we resolve by ordinary contract principles. See In re D. Wilson Const. Co., 196 S.W.3d 774, 781 (Tex. 2006); Parker v. Schlumberger Tech. Corp., 475 S.W.3d 914, 922 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Thus, the party that is trying to enforce the arbitration agreement must show that it meets all requisite contract elements, including an offer, an acceptance, a meeting of the minds, each party’s consent to the terms, and the execution and delivery of the contract with the intent that it be mutual and binding. See S.C. Maxwell Family P’ship, Ltd. v. Kent, 472 S.W.3d 341, 344–45 (Tex. App.—Houston [1st Dist.] 2015, no pet.); Montoya v. Glenny, No. 04-08-00923-CV, 2009 WL 4981329, at *3 (Tex. App.—San Antonio Dec. 23, 2009, no pet.) (mem. op.).

Key to this case, the formation of the contract, requires a meeting of the minds on the contract’s essential terms. The term “meeting of the minds” refers to the parties’ “mutual understanding and assent to the agreement regarding the subject matter and the essential terms of the contract.” Izen v. Comm’n For Lawyer Discipline, 322 S.W.3d 308, 318 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). It is an essential element to the formation of a contract. See APMD Holdings, Inc. v. Praesidium Med. Prof’l Liab. Ins. Co., 555 S.W.3d 697, 707 (Tex. App.—Houston [1st Dist.] 2018, no pet.). We examine and consider the entire writing to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. See Webster, 128 S.W.3d at 229.

CHG-Bellaire argues that its evidence—the EIBP, the Employee Handbook, the EDRA, and the two affidavits—establishes that Johnson reviewed the employment agreements containing the arbitration provision, correctly answered all questions at the end of the courses, and electronically agreed to arbitrate all covered claims, including her claims for negligence, gross negligence, and all claims seeking to recover damages for her personal injuries.

Johnson testified under oath that, based on her personal recollection, she did not recall seeing the EIBP or Employee Handbook:

Counsel: If I can—all right I’ve got something up here on the screen that says “Employee Injury Benefit Plan,” and it’s going to go through several slides.

Johnson: Uh-huh.

Counsel: And I want to go ahead and take you through this, and then I’m going to ask you whether you recall seeing this or not. Okay?

Johnson: Okay.

Counsel: It says—it has a question here. Do you see this? It says: “I understand that I must carefully read the document entitled ‘Cornerstone Health Group Employee Injury Benefit Plan Arbitration Acknowledgement’ on the previous slide.” Do you recall seeing something like this?

Johnson: No.

Counsel: Okay. All right. Do you recall seeing something that says that you acknowledge and agree that selecting “I agree,” clicking on the submit button below is binding like a written signature in ink and it talks about the Employee Injury Benefit Plan and the arbitration acknowledgment? Do you recall seeing that?

Johnson: No.

Counsel: All right. Next slide says: “I understand that if I do not understand any part of these instructions, I have the opportunity to contact my facility’s human resource representative.” Do you recall seeing this?

Johnson: No.

Counsel: And then after this, it says: “Submit quiz”?

Johnson: No.

* * *

Counsel: And I’ll ask you if you recall reviewing—it’s entitled “Cornerstone Employee Handbook, Code of Conduct and Arbitration Agreement.”

Johnson: And this would have been online?

Counsel: This would have been online, yes, ma’am. It would have been in a slide format, and these are actually screenshots of the slides that I’m showing you.

Johnson: No.

Counsel: You don’t recall—

Johnson: I don’t recall this.

Counsel: —reviewing this one?

Johnson: No.

Johnson also testified that she disputed and could not recall reviewing the EIBP arbitration acknowledgment:

Counsel: Okay. If you look at the—I believe it’s Exhibit 3. It says EDR agreement—I’m sorry. It says: “Employee Injury Benefit Plan, CHG - LATC/BH.” And it says the date you completed it was July 8th?

Johnson: Uh-huh.

Counsel: All right. What I showed you is that entry right there, and it shows that you completed it on July 8th. Is that something that you dispute, actually having gone through and reviewed the employee injury benefit plan arbitration acknowledgment?

Johnson: Do I dispute it? Yes, I don’t recall it.

Counsel: You don’t recall it?

Johnson: Yeah. So ...

CHG-Bellaire contends that Johnson’s failure to recall acknowledging or otherwise executing the arbitration agreement cannot raise a fact issue on notice. It relies on Barker v. UHS of Texoma, Inc., No. 4:18-CV-502, 2019 WL 2358923 (E.D. Tex. June 4, 2019) (mem. op.).

In Barker, an employee sued her employer, Texoma, for violating the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Family and Medical Leave Act. Id. at *1. Texoma moved to compel arbitration. Id. The parties disputed whether the Barker received proper notice of the arbitration agreement, which Texoma implemented during the course of her employment. Id. at *2. Texoma required its employees to complete a course titled “Alternative Resolution of Conflicts,” which informed employees of the arbitration agreement and their right to opt out in writing. Id. Although Barker denied receiving the agreement or taking the course, Texoma presented evidence showing that all employees had to complete the Alternative Resolution of Conflicts online course, that the course informs users of the new arbitration agreement and their right to opt out in writing, and that Barker completed the course. Id. Texoma also provided a document outlining each step in the course that Barker completed and a certificate of completion with Barker’s name on it. Id. This certificate would issue only if, on completing the course, Barker “acknowledged [that] this course contains the ARC Program materials” and that she “had an opportunity to review them.” Id.

The court held that Barker’s sworn denial could not create a fact issue on notice and that Texoma established the validity of the arbitration agreement by a preponderance of the evidence. Id. at *3. The court reasoned that trial courts may resolve factual disputes when parties present competing evidence, and it resolved the dispute in favor of Texoma. Id. (“In this case, the Court finds Texoma Medical’s records and its employees’ detailed affidavits on those records more reliable than Barker’s dated recollection.”).

Johnson, on the other hand, cites two cases in which the trial courts addressed whether an employee’s denial created a fact issue to defeat compelling arbitration based on the lack of notice. In Kmart Stores of Tex., L.L.C. v. Ramirez, 510 S.W.3d 559 (Tex. App.—El Paso 2016, pet. denied), an employer sought to compel arbitration under an agreement which it claimed its employee had electronically reviewed and consented to through an online portal the employer provided. Id. at 562–63. The employee denied under oath that she had ever acknowledged or agreed to the purported arbitration agreement. Id. The employer produced an affidavit from a compliance programs manager stating that the electronic system showed that the employee had created an “Arbitration Policy/Agreement Course” under her login credentials and that the employee had electronically acknowledged receipt of it. Id. The trial court held a hearing on the motion to compel arbitration and denied the motion. Id. at 563–64.

On appeal, the question before the court was whether the evidence established that both parties assented to arbitrate claims under the agreement. Id. at 564. The court deferred to the trial court’s factual findings and held that the employee’s sworn denial of notice was sufficient to create a genuine fact issue, even though the employer’s electronic records showed her unique login credentials were used to access and acknowledge the agreement on the online portal. Id. at 571. Because the trial court held a hearing on the employer’s motion to compel, the appellate court deferred to the trial court’s factual determinations of the parties’ competing evidence, reasoning that “the trial judge was free to believe whichever it thought was more persuasive.” Id. at 569–71 (“Notice is a fact question, and ultimately, this case boils down to which version of facts the trial court credits.”). The court also noted that the employer failed to cite “any authority requiring the courts to give credence to an employer’s electronic records over an employee’s testimony in arbitration determinations.” Id.

The second case Johnson cites is Gunda Corp., LLC v. Yazhari, No. 14-12-00263-CV, 2013 WL 440577 (Tex. App.—Houston [14th Dist.] Feb. 5, 2013, no pet.) (mem. op.). In Gunda, an employer presented a copy of an arbitration agreement purportedly signed by its employee, whom the employer was seeking to compel into arbitration. Id. at *4. The trial court held a non-evidentiary hearing and denied the employer’s motion to compel arbitration. Id. at *2.

On appeal, the court reviewed the record evidence presented by each party. Id. at *2–4.The employer’s evidence included signed acknowledgments that the employee read and understood certain policies and a copy of the arbitration agreement bearing employee’s signature. Id. at *3. The record also included an affidavit, asserting that the employee signed and returned documents containing the arbitration agreement. Id. The employee, on the other hand, informed the court that the employer never produced the original arbitration agreement signed by him and presented an affidavit denying ever having seen or signed the arbitration agreement. Id. at *9–10. The appellate court determined that the evidence did not establish an agreement to arbitrate claims and thus “the evidence raised a fact issue regarding the formation of an agreement to arbitrate ....” Id. at *4.

Although these cases are relevant and persuasive, we note a significant difference between those cases and the case before us: The trial court held no hearing on CHG-Bellaire’s motion to compel arbitration. Although a hearing is not required before the trial court determines whether to compel arbitration, we must review the parties’ competing affidavits, pleadings, discovery, and stipulations to determine whether the trial court’s ruling is supported by the evidence. See In re Jim Walter Homes, 207 S.W.3d at 896; Webster, 128 S.W.3d at 233.

After reviewing the competing evidence here, we cannot say that the trial court acted in “an arbitrary or unreasonable manner, without reference to any guiding rules or principles.” In re Nitla S.A. de C.V., 92 S.W.3d at 422. We note that CHG-Bellaire explicitly asked whether Johnson recalled viewing the agreement. It did not ask, however, whether she had executed or electronically signed the agreement. Nor did it properly impeach Johnson’s testimony. Johnson disputed reviewing the EIBP arbitration acknowledgment. The trial court could have reasonably believed that Johnson had no notice of the arbitration agreement based on her sworn testimony, even though CHG-Bellaire presented documents showing that she had acknowledged them. See, e.g., Big Bass Towing Co. v. Akin, 409 S.W.3d 835, 842 (Tex. App.—Dallas 2013, no pet.) (“The fact that a document was “available” for inspection does not demonstrate that Akin had notice of the document.”). We therefore conclude that the trial court did not abuse its discretion. See Austin, 417 S.W.3d at 207.

Because CHG-Bellaire failed to carry its burden of establishing a valid, enforceable arbitration agreement, we need not determine whether it carried its burden of establishing that Johnson’s claims asserted fell within the scope of the agreement. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).

Conclusion

We affirm the trial court’s order.

Footnotes
1	She also argued that the issues were collaterally or judicially estopped by the trial court’s denial of CHG-Bellaire’s motion to stay litigation.
2	The arbitration agreement here is governed by the FAA, and we have jurisdiction to review the trial court’s denial of CHG-Bellaire’s motion to compel arbitration under the FAA. See TEX. CIV. PRAC. & REM. CODE § 51.016; 9 U.S.C. §§ 16(a)(1)(C), 206; Acad., Ltd. v. Miller, 405 S.W.3d 152, 154 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

Court of Appeals of Texas, Houston (1st Dist.).

MICHELLE HUDSON, Appellant

v.

MEMORIAL HOSPITAL SYSTEM, MEMORIAL HERMANN HEALTH SYSTEM, THYSSENKRUPP ELEVATOR CORPORATION, AND C.B. RICHARD ELLIS, INC., Appellees

NO. 01-19-00300-CV

|

Opinion issued April 15, 2021

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Case No. 2016-83958

Panel consists of Justices Hightower, Countiss, and Farris.

MEMORANDUM OPINION

Richard Hightower Justice

In this personal injury suit, Michelle Hudson challenges the trial court’s summary judgment rendered against her in favor of Memorial Hermann Health System¹, CB Richard Ellis, Inc., and ThyssenKrupp Elevator Corporation. Hudson raises two issues on appeal. She contends that the trial court erred in granting summary judgment against her because it incorrectly applied principles of premises liability rather than principles of ordinary negligence to her claims, and she asserts that there are genuine issues of material fact with respect to her claims, precluding summary judgment.

We affirm.

Background

Hudson sued Memorial Hermann, claiming that she was injured on Memorial Hermann’s property. At the time, Hudson was employed by Memorial Hermann, a non-subscriber under the Texas Workers’ Compensation Act. In her first amended petition, Hudson alleged that she “was in an elevator on [Memorial Hermann’s] premises,” when “the elevator stopped suddenly and violently.” She stated that she had “then pushed the elevator buttons and felt what seemed like an electric shock.”

Hudson also sued CB Richard Ellis, Inc. (“CBRE”), which managed the premises, and ThyssenKrupp Elevator Corporation, which provided maintenance services for the elevator.

Hudson alleged that the malfunctioning elevator “was an unreasonably dangerous condition created by [the defendants’] failure to properly and timely maintain, control, inspect and/or service the improperly functioning elevator and/or warn of the unreasonably dangerous condition.” Hudson alleged that the defendants had “deviated from the reasonable standard of care,” which “they had a duty to exercise and [had] breached said duty through its [sic] negligent acts and omissions” of:

1. Failing to properly maintain the elevator in question;

2. Failing to regularly and systematically inspect the elevator in question so Defendants could make safe or warn of the dangerous condition;

3. Failing to properly inspect the elevator and elevator equipment;

4. Allowing an unreasonably dangerous condition to exist on the property;

5. Failing to correct the unreasonably dangerous condition;

6. Failing to correct the unreasonably dangerous condition before placing the elevator back into service;

7. Failing to properly inspect the elevator and the cause of its repeated failure condition before placing the elevator back into service;

8. Failing to warn Plaintiff of the unreasonably dangerous condition of the elevator and elevator equipment; and

9. Failing to discover the unreasonably dangerous condition.

Hudson also pleaded the doctrine of res ipsa loquitor.

Hudson further claimed that “[t]he conditions on the premises posed an unreasonable risk of harm because it is foreseeable that an improperly inspected and maintained elevator would malfunction and create an unsafe and unexpected hazard.” Hudson alleged that the defendants’ “negligent acts or omissions” proximately caused her “to suffer serious physical injuries.” She sought damages for medical expenses, physical pain, mental anguish, and lost wages.

Although it was later shown in the summary-judgment proceedings that Hudson was an employee of Memorial Hermann at the time of her alleged injury and that Memorial Hermann was a non-subscriber under the Texas Workers’ Compensation Act, Hudson did not allege in her first amended petition (her live pleading) that she was Memorial Hermann’s employee at the time of the incident. The only statement Hudson made in her petition, related to her employment, was her allegation that she “was an invitee at the time of injury because she was on the premises for work purposes.” In short, Hudson made no allegations that she was suing for injuries based on any duties Memorial Hermann owed to her in its role as her employer.

Memorial Hermann filed a no-evidence motion for summary judgment, asserting that Hudson had produced no evidence to support the required elements of her premises-liability claim. Specifically, Memorial Hermann asserted that there was no evidence (1) that the elevator, which Hudson claimed injured her, “had a condition that posed an unreasonable risk of harm,” (2) that Memorial Hermann “had actual knowledge of the condition,” or (3) that Memorial Hermann had “failed to exercise reasonable care to reduce or eliminate the risk.”

Hudson responded to Memorial Hermann’s motion by moving for a continuance to permit her to conduct additional discovery. The trial court granted the continuance.

ThyssenKrupp filed a combined traditional and no-evidence motion for summary judgment. In support of its no-evidence motion for summary judgment, ThyssenKrupp asserted that Hudson had presented no evidence of the elements of a negligence or premises-liability claim against ThyssenKrupp.

In support of its traditional motion for summary judgment, ThyssenKrupp offered the affidavit of Brent Early, its operations manager. Early testified that ThyssenKrupp provided “elevator maintenance services” to the elevators in the building where Hudson was allegedly injured. Early testified that the incident involving Hudson was reported to ThyssenKrupp on December 11, 2014, the day the incident occurred. He stated that the next day, ThyssenKrupp sent two of its mechanics to inspect the elevator. The mechanics “inspected and observed the elevator’s operation” and “confirmed” that the elevator was operating “correctly and without malfunction.”

Hudson responded to ThyssenKrupp’s combined motion for summary judgment. She offered her own deposition testimony in which she stated that, after the alleged incident, her supervisor, B. Hazard, had taken her to the building manager’s office to report the incident. Hudson testified that she then heard Hazard tell the building manager that Hazard had also experienced problems with the elevator that same day. In addition, she asserted that ThyssenKrupp’s negligence could be inferred by applying the doctrine of res ipsa loquitor.

Memorial Hermann filed a motion to reconsider its previously filed motion for summary judgment. Hudson responded by “incorporate[ing] by reference ... all arguments presented and evidence attached to her responses” to ThyssenKrupp’s motion for summary judgment.

CBRE also filed a combined no-evidence and traditional motion for summary judgment. In support of its no-evidence motion, CBRE claimed that Hudson had failed to adduce evidence supporting any element of a negligence or premises-liability claim.

Responding to CBRE’s motion, Hudson offered her own affidavit in which she stated that prior to the date of her alleged injury, she had observed the elevator malfunctioning on different occasions. She claimed that she “would then notice that the elevator would be shut down ... for maintenance.”

Hudson also offered the affidavit of B. Hazard, her former supervisor, who testified that she had also experienced the elevator malfunction on the same day as Hudson’s alleged elevator incident. Hazard stated that she had accompanied Hudson to the building manager’s office to report Hudson’s incident. While there, Hazard reported that she, too, had experienced the elevator malfunction that day.

In addition, Hudson offered the two-page expert report of J.R. Freeman, a certified elevator safety inspector. In his report, Freeman opined that, based on his education and experience, the elevator “probably had a contactor failure.” He stated that “[m]ore likely than not, this could [have] created a jerking or abrupt stop, or a clipping of a door lock which could create a jerking and stopping.” After reviewing documentation related to the maintenance of the elevator, Freeman also noted that ThyssenKrupp had not produced certain 2014 maintenance records required by the administrative code regulating elevator safety. Freeman also opined that documentation produced by ThyssenKrupp did not reflect maintenance of the elevator that complied with industry standards.

Hudson filed supplemental responses (1) to Memorial Hermann’s motion to reconsider its combined motion for summary judgment and (2) to ThyssenKrupp’s combined motion for summary judgment. In the supplemental responses to Memorial Hermann’s and ThyssenKrupp’s motions for summary judgment, Hudson stated that she was incorporating by reference her arguments and evidence offered in support of her response to CBRE’s motion.

ThyssenKrupp filed objections to Hudson’s evidence offered in support of her response to CBRE’s combined motion for summary judgment. Specifically, ThyssenKrupp objected to Hudson’s affidavit, Freeman’s expert report, and Hazard’s affidavit. CBRE also filed objections to the evidence, expressly adopting the objections filed by ThyssenKrupp. In addition, Memorial Hermann objected to Hudson’s affidavit and to Freeman’s expert report.

The trial court granted most of ThyssenKrupp’s objections to the evidence and ordered Freeman’s expert report and Hazard’s affidavit struck from the summary-judgment record. The trial court also struck the majority of Hudson’s affidavit from the record because her affidavit testimony was inconsistent with her earlier deposition testimony in which she had testified that she was not aware of any problems with the elevator before the alleged incident. This included the portions of Hudson’s affidavit in which she stated that, prior to the alleged incident in this case, she had observed the elevator malfunctioning.

The trial court signed orders granting Memorial Hermann’s no-evidence motion for summary judgment and the combined no-evidence and traditional motions for summary judgment of CBRE and ThyssenKrupp. The orders were signed on the same day. The trial court did not specify whether CBRE’s or ThyssenKrupp’s motions were granted on no-evidence or traditional grounds. By granting the motions for summary judgment, the trial court rendered a take-nothing judgment against Hudson in favor of Memorial Hermann, CBRE, and ThyssenKrupp (collectively, “Appellees,” hereafter).²

Summary Judgment

In two issues, Hudson asserts that the trial court erred in granting Appellees’ motions for summary judgment.

A. Standard of Review

We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In conducting our review, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant’s favor. Id. If a trial court grants summary judgment without specifying the grounds for granting the motion, we must uphold the trial court’s judgment if any of the asserted grounds are meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

A party seeking summary judgment may combine, in a single motion, a request for summary judgment under both the no-evidence and the traditional standards. Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004). To prevail on a no-evidence summary-judgment motion, a movant must identify “one or more essential elements of a claim or defense ... as to which there is no evidence.” TEX. R. CIV. P. 166a(i); see B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 259 (Tex. 2020). The burden then shifts to the nonmovant to produce “summary judgment evidence raising a genuine issue of material fact.” TEX. R. CIV. P. 166a(i); B.C., 598 S.W.3d at 259.

A no-evidence summary judgment may not be granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact. Id. More than a scintilla of evidence exists when reasonable and fair-minded individuals could differ in their conclusions. Id.

To prevail on a traditional summary judgment, the movant bears the burden of proving that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 641 (Tex. 2015). When a defendant moves for summary judgment, it must either (1) disprove at least one essential element of the plaintiff’s cause of action or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiff’s cause of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). An issue is conclusively established if reasonable minds could not differ about the conclusion to be drawn from the facts in the record. Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 681 (Tex. 2017).

If the movant meets its burden, the burden then shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

B. Premises-Liability Law Governs Claim Against Memorial Hermann

In her first issue, Hudson contends that the trial court erred by granting summary judgment for Memorial Hermann based on the legal principles governing premises liability rather than on the principles governing ordinary negligence. She argues that because she was employed by Memorial Hermann, a non-subscribing employer, and “was injured during the course and scope of her employment on premises owned and controlled” by Memorial Hermann, her injuries were “workplace injuries suffered by an employee and subject to the provisions of Chapter 406 of the Texas Labor Code.” Hudson asserts the Labor Code required that her claim against Memorial Hermann be “determined by an ordinary negligence standard rather than a premises liability standard.”³ Hudson contends that, for this reason, she was not required to offer evidence of the elements of premises liability in her summary-judgment responses, rather, she was required only to offer evidence of the elements of ordinary negligence.⁴

1. Argument not preserved

Hudson did not raise her argument that the trial court incorrectly applied the legal principles of premises liability rather than the principles of ordinary negligence in her summary-judgment responses. A nonmovant must expressly present to the trial court any reasons for avoiding the movant’s right to summary judgment. McConnell v. Southside ISD, 858 S.W.2d 337, 343 (Tex. 1993); see TEX. R. CIV. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”); D.R. Horton-Tex., Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009) (“A non-movant must present its objections to a summary[-]judgment motion expressly by written answer or other written response to the motion in the trial court or that objection is waived.”). Because she did not raise this argument in her summary-judgment responses, Hudson failed to preserve this issue for our review, and we cannot consider it on appeal as a ground for reversal. See TEX. R. CIV. P. 166a(c); McConnell, 858 S.W.2d at 343.

2. Argument without merit

Even if Hudson’s legal argument is properly presented on appeal, we conclude it is without merit.

Hudson correctly points out that that an employer has a “duty to use ordinary care in providing a safe workplace.” LMC Complete Auto., Inc., v. Burke, 229 S.W.3d 469, 476 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006)); see TEX. LAB. CODE § 411.103(1)–(3) (providing that each employer shall “provide and maintain employment and a place of employment that is reasonably safe and healthful for employees,” “install, maintain, and use methods, processes, devices, and safeguards,” and “take all other actions reasonably necessary to make the employment and place of employment safe”). Hudson also correctly points out that, under the Labor Code, if an employer elects to be a non-subscriber to workers’ compensation insurance, as Memorial Hermann has, then a consequence of that choice is that the non-scribing employer may be sued for negligence by or on behalf of the employee “to recover damages for personal injuries or death sustained by [the] employee in the course and scope of the employment.” TEX. LAB. CODE § 406.033(a), (d). And she accurately observes that the Labor Code strips the non-subscribing employer of certain defenses, including contributory negligence and assumed risk. Id. § 406.033(a). Hudson, however, incorrectly asserts that when an employee sues a non-subscribing employer for personal injuries sustained in the workplace in the course and scope of her employment, the employee’s claims are necessarily governed by principles of ordinary negligence, even when, as pleaded here, the employee’s injuries are proximately caused solely by an alleged dangerous condition of the workplace premises, and the plaintiff-employee asserts no claim that her injuries were caused by a breach of the additional duties an employer owes to its employees.

The unmeritorious nature of Hudson’s argument is revealed by the Supreme Court of Texas’s opinion in Austin v. Kroger Tex. L.P., 465 S.W.3d 193 (Tex. 2015). There, the court—in answering a certified question from the Fifth Circuit Court of Appeals regarding a premises-liability claim asserted by an employee against a non-subscribing employer⁵—confirmed that “an employer has the same premises-liability duty to its employees as other landowners have to invitees on their premises.” Id. at 202. The court stated that, “[w]hile an employer’s liability [to its employees] may differ from that of other landowners due to the statutory waiver of its defenses, its premises-liability duty is the same as that owed by landowners to invitees generally.” Id. (internal citation omitted; emphasis in original). The supreme court clarified that an employer’s premises-liability duty, which is the same general duty as other premises owners, was “a duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.” Id. at 203. Necessary to the Austin court’s confirmation that a non-subscribing employer’s premises-liability duty to its employee is the same as a landowner’s general premises-liability duty to an invitee is the recognition that an employee’s suit against her employer for workplace injuries may be based on premises-liability principles rather than on ordinary negligence principles. See id. at 202; see Arce v. McGough, No. 04-18-00064-CV, 2018 WL 4608464, at *3 (Tex. App.—San Antonio, Sept. 26, 2018, no pet.) (mem. op.) (citing Austin and recognizing that, regardless of whether plaintiff was contractor or employee of defendant-premises owner, duty owed to plaintiff by premises owner for claim arising from premises defect was the same; that is, “an employer’s duty to make its premises reasonably safe for employees is identical to a landowner’s duty to make its premises reasonably safe for invitees generally”).

We note that the court in Simon v. Johns Community Hospital more directly addressed the argument raised by Hudson here, holding that when “an employee seeks damages [against her non-subscriber employer] for injuries caused by a dangerous [premises] condition, he or she must prove the elements of a premises-liability case.” No. 03–07–00057, 2008 WL 2309295, at *3 (Tex. App.—Austin June 4, 2008, no pet.) (mem. op.). There, Simon, a nurse, was employed by a hospital, which was a non-subscriber. Id. at *1. She sued the hospital for injuries that she sustained when she slipped on a substance on the hospital floor. Id.

The hospital filed a no-evidence motion for summary judgment, asserting that there was no evidence that it had actual or constructive knowledge of the substance on the floor, an essential element Simon was required to prove to establish the hospital’s premises liability to her as an employee-invitee. Id. The trial court granted the hospital’s motion. Id.

On appeal, Simon emphasized that she had pleaded general negligence theories of recovery based on her allegation that the hospital had not provided a safe workplace. Id. She insisted that she was “not required to prove the elements of a premises liability claim because an employer’s duty to its employees to provide them a safe workplace is conceptually distinct and independent from the duties the employer owes to invitees generally.” Id. at *2. The court rejected Simon’s argument, recognizing that “[the] supreme court had stated the general principle that ‘the nature of the duty of the landowner to use reasonable care to make his premises reasonably safe may, in all material respects, be identical with the nature of the duty of the master to use reasonable care to provide his servant with a reasonably safe place to work.’ ” Id. (quoting Sears, Roebuck & Co. v. Robinson, 280 S.W.2d 238, 240 (Tex. 1955), rev’d, in part, on other grounds by Austin, 465 S.W.3d at 212)). The court clarified that “[t]his does not mean that every negligence claim brought by an employee against a non-subscriber employer is inherently a premises liability suit.” Id. at *3 (internal quotation marks omitted).

The court stated that “[t]he imposition of negligence liability for injury caused by a dangerous condition, as contrasted with injury that is the contemporaneous result of negligent activity, is what distinguishes a premises defect claim from a claim of ordinary negligence.” Id. at *2 (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)). On appeal, Simon acknowledged that her “entire liability case revolve[d] on whether the substance on the floor was a dangerous condition.” Id. The court stated, “Had there been issues in the instant case not purely dependent on the existence of this dangerous condition, and on Johns Community Hospital’s knowledge of its presence, this would not have been a premises liability case.” Id. at *3 (internal quotation marks omitted). But, when “an employee seeks damages for injuries caused by a dangerous condition, [as Simon did,] he or she must prove the elements of a premises liability cause of action.” Id.

We are mindful that, in Austin, the Supreme Court of Texas clarified that “[i]n a typical premises-liability case, the landowner owes the invitee two duties: a duty to keep the premises reasonably safe and a duty not to injure the invitee through contemporaneous negligent activity,”⁶ but, in a case in which “the landowner is also an employer and the invitee is also its employee, this additional relationship may give rise to additional duties, such as a duty to provide necessary equipment, training, or supervision.” Austin, 465 S.W.3d at 215. The court observed that, although it had “addressed the interaction between premises-liability claims and negligent-activity claims on several occasions,” it had “never addressed the interaction between premises-liability claims and an employer’s other general negligence duties.” Id. at 215–16.

In Austin, the employee-plaintiff had, in addition to asserting a premises-liability claim against his employer, alleged that his landowner-employer had failed “to provide a ‘necessary instrumentality’ ” to safely do his job.” Id. at 215. The court stated that the employee’s “instrumentalities claim invoke[d] one of [the] additional duties [that an employer owed an employee]: the duty to furnish reasonably safe equipment necessary for performance of the job.” Id. The court observed, “When an injury arises from a premises condition, it is often the case that any resulting claim sounds exclusively in premises liability, but that is not necessarily the case. An injury can have more than one proximate cause.” Id. The court stated that the fact that the employee had alleged that a condition of the premises proximately caused his injury did not preclude an additional claim that the employer-landowner’s negligent failure to provide the instrumentality also caused his injury. Id.

The Austin court determined that, as an employer, the landowner owed its employee “duties in addition to its premises-liability duty and its duty not to engage in negligent activities, including the duty to provide [the employee] with necessary instrumentalities.” Id. at 216 (emphasis added). The court explained that an instrumentalities claim did not necessarily involve contemporaneous activity by the employer. Id. The court rejected the employer’s assertion that because the employee had not alleged any negligent activity by the employer-landowner contemporaneous with the employer’s alleged failure to provide the instrumentality, the employee’s failure-to-provide-instrumentality claim was barred. Id. However, as relevant to Hudson’s appellate argument here, the supreme court did not hold that the additional duties owed by an employer to its employees replaces the premises-liability duty owed by an employer-landowner for claims arising from a premises condition and sounding exclusively in premises liability. See id. Rather, an employee-plaintiff’s claim that her injuries were caused by a breach of the additional duties owed to her by her employer may be brought in addition to a claim that her injuries were caused by a breach of the premises-liability duty owed to her by her landowner-employer. See id.

Turning to the instant suit, a review of Hudson’s pleadings reveals that her claim against Memorial Hermann sounds in premises liability. Although Hudson’s amended petition contains separate headings of “Cause of Action: Negligence” and “Cause of Action: Premises Liability,” “we ... must look to the substance of a plea for relief, not merely its titles and headings, to determine the nature of relief sought.” Garden Oaks Maint. Org. v. Chang, 542 S.W.3d 117, 124 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 665 (Tex. 2010) (recognizing, in case in which plaintiff had divided petition under headings “Negligence” and “Premises Liability,” that health-care liability claim cannot be recast as another cause of action to avoid statutory requirements governing those claims and that whether pleading stated health-care liability depends on underlying substance of pleading, not its form).

“When the alleged injury is the result of the condition of the premises, the injured party can recover only under a premises liability theory.” Wyckoff v. George C. Fuller Contracting Co., 357 S.W.3d 157, 163 (Tex. App.—Dallas 2011, no pet.) (citing H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992)). “Adroit phrasing of the pleadings” to encompass other theories of negligence does not affect application of premises-liability law to the claims. McDaniel v. Cont’l Apartments Joint Venture, 887 S.W.2d 167, 171 (Tex. App.—Dallas 1994, pet. denied) (op. on reh’g).

In her first amended petition, Hudson alleged that she was injured on Memorial Hermann’s premises when “the elevator stopped suddenly and violently,” and she “then pushed the elevator buttons and felt what seemed like an electric shock.” Hudson expressly alleged that “[t]he elevator stopping suddenly and violently was an unreasonably dangerous condition.” She alleged that her injuries were a result of the condition of the premises and that the property itself was unsafe. To the extent that Hudson asserted that Memorial Hermann was negligent in failing “to properly and timely maintain, control, inspect and/or service the improperly functioning elevator and/or warn of the unreasonably dangerous condition,” these allegations relate to Memorial Hermann’s purported conduct in creating, failing to warn of, or failing to correct a condition on the premises that allegedly resulted in her injuries. See In re Tex. Dep’t. of Transp., 218 S.W.3d 74, 78 (Tex. 2007) (holding that appellants’ allegations that TxDOT failed to use ordinary care in designing, inspecting, maintaining, and employing others to inspect and maintain bridge and surrounding roadway pleaded cause of action for premises or special defect, not negligent activity, because activities listed by appellants “would be causes of the conditions at the scene of the accident,” not contemporaneous activities that caused appellants’ injuries); see also Austin, 602 S.W.3d at 203 (stating that, under premises-liability theory of recovery, landowner owes a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not”). Thus, as pleaded, Hudson’s claim against Memorial Hermann was a premises-liability claim. See Warner, 845 S.W.2d at 259 (holding that when injury alleged resulted from condition of premises, injured party alleged only premises-liability claim); see also Shaw v. Wells Fargo Bank, No. 02-20-00011-CV, 2020 WL 5241188, at *2 n.1, *3 (Tex. App.—Fort Worth Sept. 3, 2020, no pet.) (mem. op.) (affirming summary judgment where defendant moved for no-evidence summary judgment only on claim for premises liability, even though plaintiff had pleaded “cause of action for premises liability, negligence, and/or negligence per se,” because plaintiff had alleged that “a premises condition caused her injuries,” thus making plaintiff’s claim a premises-liability claim).

Hudson’s first amended petition also shows that she made no claims against Memorial Hermann based on its additional duties to her as her employer. The only statement Hudson made in her amended petition regarding her employment was that she “was an invitee [on Memorial Hermann’s premises] at the time of injury because she was on the premises for work purposes.” Hudson indicated that she was suing Memorial Hermann based on its status as the party that “owned, operated, controlled and/or occupied” the premise where she was injured. Hudson asserted no claim against Memorial Hermann based on its status as her employer. And she made no claim that her injuries were proximately caused by any breach of Memorial Hermann’s duty to her as her employer to provide a safe workplace.

We hold that, even though the summary-judgment evidence later showed that Memorial Hermann was her employer, Hudson’s claim against Memorial Hermann, as pleaded, sounded only in premises liability. Hudson raised no claims against Memorial Hermann based on any duties that it owed her in its role as her employer. Cf. Austin, 5 S.W.3d at 215–216. Thus, the trial court properly analyzed Hudson’s claim against Memorial Hermann under the legal principles and elements of proof governing premises liability. See Simon, 2008 WL 2309295, at *2–*3.

We overrule Hudson’s first issue.

C. Propriety of Summary Judgment

In her second issue, Hudson contends that the trial court erred by granting summary judgment in favor of Appellees “because genuine issues of material fact existed as to the elements [of] Hudson’s negligence claims that precluded summary judgment.”

1. Premises-Liability Claim

In the trial court, Memorial Hermann filed a no-evidence motion for summary judgment, and ThyssenKrupp and CBRE each filed a combined no-evidence and traditional motion for summary judgment in which they asserted that Hudson could not produce more than a scintilla of evidence with respect to any of the elements of her premises-liability claim. See TEX. R. CIV. P. 166a(i); see also Henkel v. Norman, 441 S.W.3d 249, 251–52 (Tex. 2014). (listing elements of premises liability when plaintiff is invitee). In her second issue, Hudson has not challenged the merits of Appellees’ no-evidence motions for summary judgment on her premises-liability claim. Instead, Hudson continues to assert—as she did in her first issue—that the elements of proof for ordinary negligence, and not the elements of proof for premises liability, govern whether summary judgment in Appellees’ favor was proper. Thus, because she has not challenged the merits of Appellees’ motions for summary judgment as to her premises-liability claim, we must affirm the trial court’s grant of summary judgment as to that claim. See Little v. Delta Steel, Inc., 409 S.W.3d 704, 722 (Tex. App.—Fort Worth 2013, no pet.) (affirming no-evidence summary judgment as to gross negligence claim when appellant did not challenge merits of motion on that claim on appeal); Kipp v. Dyncorp Tech. Servs., LLC, No. 01-06-00906-CV, 2007 WL 3293719, at *5 (Tex. App.—Houston [1st Dist.] Nov. 8, 2007, no pet.) (mem. op.) (affirming no-evidence summary judgment on premises-liability claim because, in trial court, movant asserted no evidence was produced by non-movant on each element of claim, but, on appeal, non-movant did not address two elements); see also Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990) (proscribing reversal of summary judgment without properly assigned error).

2. Negligence Claim

As held in the first issue, Hudson has asserted a claim against Memorial Hermann based only on premises liability, not on ordinary negligence. However, it is less clear whether Hudson’s claims against CBRE and ThyssenKrupp sound in premises liability or in negligence. Specifically, it is unclear from the record whether either CBRE, as property manager of Memorial Hermann’s premises, or ThyssenKrupp, as the company that serviced the elevator, had the required control over the property to be liable under a premises-liability theory. See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 474 (Tex. 2017) (“[T]he duty to make the premises safe or warn of dangerous conditions generally runs with the ownership or control of the property, and a defendant’s liability under a premises liability theory rests on the defendant’s assumption of control of the premises and responsibility for dangerous conditions on it.” (internal quotation marks omitted)); Allen Keller Co. v. Foreman, 343 S.W.3d 420, 424 (Tex. 2011) (recognizing that general negligence principles apply to contractor, which left premises in unsafe condition). Thus, we determine whether summary judgment was proper based on ordinary negligence against CBRE and ThyssenKrupp.

The elements of a negligence claim are (1) the existence of a legal duty, (2) a breach of that duty, and (3) damages proximately caused by the breach. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015). In their respective combined no-evidence and traditional motions for summary judgment, CBRE and ThyssenKrupp listed each element of a negligence claim and asserted that Hudson could not produce evidence with respect to any of the elements. See TEX. R. CIV. P. 166a(i).

In her response to CBRE’s no-evidence motion, which she incorporated by reference into her supplemental response to ThyssenKrupp’s motion, Hudson pointed to Memorial Hermann’s “case report, a document” filled out after the alleged incident, describing the incident as reported by Hudson and indicating that the elevator had been shut down following the incident. Hudson asserted that the case report was evidence showing that CBRE and ThyssenKrupp had breached their duty of care to her. However, cases have long recognized that the mere occurrence of an accident is not itself evidence of negligence. See Rankin v. Nash-Tex. Co., 105 S.W.2d 195, 199 (Tex. [Comm’n Op.] 1937); Flores v. Rector, No. 07-19-00274-CV, 2020 WL 4912921, at *4 (Tex. App.—Amarillo Aug. 20, 2020, no pet.) (mem. op.); Trejo v. Laredo Nat’l Bank, 185 S.W.3d 43, 48 (Tex. App.—San Antonio 2005, no pet.).

Hudson also cited her own affidavit as evidence that CBRE and ThyssenKrupp breached their duty of care to her. On appeal, she also points to Hazard’s affidavit. However, the cited evidence is no longer part of the summary-judgment record. After granting objections to the affidavits, the trial court struck, from the summary-judgment record, (1) Hazard’s affidavit, (2) the cited portions of Hudson’s affidavit, and (3) Freeman’s expert report. Hudson raises no challenge on appeal to the trial court’s order striking her evidence from the record. When reviewing whether a summary judgment was properly granted, we may not consider evidence struck from the record because that evidence is not a part of the summary-judgment record considered by the trial court. See McCollum v. The Bank of New York Mellon Tr. Co., 481 S.W.3d 352, 362 (Tex. App.—El Paso 2015, no pet.) (citing Trudy’s Tex. Star, Inc. v. City of Austin, 307 S.W.3d 894, 898 n.2 (Tex. App.—Austin 2010, no pet.); Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 294 (Tex. App.—Dallas 2009, no pet.)). Thus, we may not consider the struck portions of Hudson’s affidavit that she relied on in the trial court or Hazard’s affidavit now cited by Hudson on appeal.

Without more, Hudson’s summary-judgment evidence of a breach of duty falls short of raising a scintilla of evidence because it is “so weak as to do no more than create a surmise or suspicion” of fact.⁷ King Ranch, Inc., 118 S.W.3d at 751; see also Flores, 2020 WL 4912921, at *4 (holding that evidence showing merely that accident occurred was insufficient to demonstrate, for purposes of overcoming grant of no-evidence summary judgment, that defendant had breached duty to plaintiff). Accordingly, we hold that the trial court did not err in granting no-evidence summary judgment in favor of CBRE and ThyssenKrupp on Hudson’s negligence claim.

We overrule Hudson’s second issue.

Conclusion

We affirm the judgment of the trial court.

Footnotes
1	In her original and first amended petitions, Hudson listed both Memorial Hermann Health System and Memorial Hospital System as defendants. In its answer, Memorial Hermann Health System stated that it was “incorrectly designated as ‘Memorial Hospital System’ ” and indicated that Memorial Hermann Health System and Memorial Hospital System were the same entity being incorrectly referred to interchangeably by Hudson. The record does not reflect any answer or appearance by Memorial Hospital System. In her brief, Hudson refers to Memorial Hermann Health System, which was her employer and the owner of the premises where she claimed to have been injured in this suit, primarily as Memorial Hospital System. To avoid confusion, we refer to the party only as Memorial Hermann Health System (“Memorial Hermann”).
2	The trial court signed separate orders granting each of Appellees’ motions for summary judgment. The order granting Memorial Hermann’s motion ordered that Hudson’s “causes of action” against Memorial Hermann were dismissed with prejudice and that Hudson “take nothing by her claims” against Memorial Hermann. Similarly, the order granting ThyssenKrupp’s motion provided that the motion was “granted in its entirety, and that Plaintiff Michelle Hudson take nothing from ThyssenKrupp on her causes of action, such causes of action being disposed of by this Judgment.” The order granting CBRE’s motion, which sought summary judgment on causes of action for ordinary negligence and premises liability, ordered that the motion was granted “in all its parts.” Given the record, the orders, taken together, constitute a final judgment. See Lehman v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (“Because the law does not require that a final judgment be in any particular form, whether a judicial decree is a final judgment must be determined from its language and the record in the case.”); see also Ritzell v. Espeche, 87 S.W.3d 536, 537–38 (Tex. 2002) (holding that summary judgment was final because it expressly ordered that plaintiff take nothing by his claims even though motion for summary judgment did not address claim added in amended petition after motion for summary judgment was filed); In re Harris Cty. Hosp. Dist. Aux., Inc., 127 S.W.3d 155, 159 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) (holding summary judgment order indicated finality because it ordered plaintiff’s cause of action was “hereby dismissed with prejudice and that Plaintiff take nothing by her suit”); Noorian v. McCandless, 37 S.W.3d 170, 173 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)) (“[A] final judgment may consist of several orders that cumulatively dispose of all parties and issues.”).
3	Hudson now contends on appeal that, based on her status as an employee and Memorial Hermann’s status as her non-subscribing employer, the elements of ordinary negligence—not those of premises liability—also apply to her claims against CBRE and ThyssenKrupp because they are liable as “agents” of Memorial Hermann.
4	Although premises liability is itself a branch of negligence law, it is a “special form” of negligence with elements that define a property owner or occupant’s duty with respect to those who enter the property. Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016). To prevail on a premises liability claim against a property owner, an injured invitee must establish four elements: (1) the property owner had actual or constructive knowledge of the condition causing the injury; (2) the condition posed an unreasonable risk of harm; (3) the property owner failed to take reasonable care to reduce or eliminate the risk; and (4) the property owner’s failure to use reasonable care to reduce or eliminate the risk was the proximate cause of injuries to the invitee. Henkel v. Norman, 441 S.W.3d 249, 251–52 (Tex. 2014).
5	The certified question was as follows: “Pursuant to Texas law, including § 406.033(a)(1)–(3) of the Texas Labor Code, can an employee recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy?” Austin v. Kroger Tex. L.P., 465 S.W.3d 193, 199 (Tex. 2015). The supreme court provided the following answer: Under Texas law, an employee generally cannot “recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy.” As is the case with landowners and invitees generally, employers have a duty to maintain their premises in a reasonably safe condition for their employees, but they will ordinarily satisfy their duty as a matter of law by providing an adequate warning of concealed dangers of which they are or should be aware but which are not known to the employee. “The employee’s awareness of the defect” does not “eliminate the employer’s duty to maintain a safe workplace,” but with respect to premises conditions, that duty is ordinarily satisfied by warning the employee of concealed, unknown dangers; the duty to maintain a reasonably safe workplace generally does not obligate an employer to eliminate or warn of dangerous conditions that are open and obvious or otherwise known to the employee. Exceptions to this general rule may apply in premises liability cases involving third-party criminal activity or a necessary use of the premises. If an exception applies, the employer may owe a duty to protect the employee from the unreasonably dangerous condition despite the employee’s awareness of the danger, and the [Texas Workers’ Compensation Act] will prohibit a non-subscribing employer from raising defenses based on the employee’s awareness. Id. at 217.
6	Hudson raises no issue on appeal that summary judgment should be reversed because her alleged injuries were caused by a breach of Appellees’ duty not to injure her through “contemporaneous negligent activity.” Instead, her appellate argument focuses on the duties that Memorial Hermann owed to her as her employer.
7	In her response to ThyssenKrupp’s no-evidence motion, Hudson relied on the doctrine of res ipsa loquitor to satisfy her burden on the breach-of-duty element. However, on appeal, Hudson does not assert that res ipsa loquitor would be a sufficient basis to reverse summary judgment on her negligence claim.