Fitness Entertainment Ltd. v. Hurst

527 S.W.3d 699, 2017 Tex. App. LEXIS 8473, 2017 WL 3887351
CourtCourt of Appeals of Texas
DecidedSeptember 6, 2017
DocketNo. 08-15-00262-CV
StatusPublished
Cited by6 cases

This text of 527 S.W.3d 699 (Fitness Entertainment Ltd. v. Hurst) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fitness Entertainment Ltd. v. Hurst, 527 S.W.3d 699, 2017 Tex. App. LEXIS 8473, 2017 WL 3887351 (Tex. Ct. App. 2017).

Opinion

OPINION

ANN CRAWFORD McCLURE, Chief Justice

Brian Hurst filed an employment discrimination and retaliation suit against Fitness Entertainment, Ltd. doing business as Planet Fitness. The trial court heard and denied Planet’s motion to stay proceedings and compel arbitration. Planet appeals the trial court’s denial of its motion, and complains that the trial court provided insufficient notice that an eviden-tiary hearing would be conducted.

FACTUAL SUMMARY

Planet filed its motion to stay proceedings and compel arbitration on June 15, [701]*7012015. Affixed to its motion is a document entitled, “Employment, Non-Competition Agreement and Arbitration Agreement.” The last page of the document bears only Hurst’s printed name as “employee,” a signature, a black box positioned over a line for a social security number, and information consisting of an address, telephone numbers, and emergency contact person. The last page also bears an unsigned signature block for “Gym Management Corp., and/or JB4 Fitness Management, Ltd., d/b/a Planet Fitness® (‘EMPLOYER’)” followed by the name and signature line for “Joseph Bencomo," which is unsigned, and a line for inserting a date, which is blank. On July 7, 2015, the trial court set a hearing on the motion for July 16, 2015.

At 5:37 p.m. on July 15,2015, Hurst filed his response. He asserted that he did not at any time during his employment acknowledge or agree to the purported arbitration agreement, and refuted its existence and validity. He also alleged that Planet had failed to satisfy its burden of establishing the existence of a valid arbitration agreement pursuant to traditional contract principles, and objected on grounds of lack of authenticity, hearsay, and the best evidence rule because Planet had not produced the original document that Hurst had purportedly executed.

In support of his response, Hurst affixed his sworn affidavit in which he attested that during the period of his employment he did not sign an arbitration agreement. Referring to the “Employment, Non-Competition Agreement and Arbitration Agreement” attached to the motion to compel, Hurst declared that although his signature appears on the last page of the document, the pages preceding his signature are “replacements of some other document” he signed and that “someone attached the last page with my signature to the purported arbitration agreement” that he had not signed. Hurst noted that the documents he signed had a larger heading on the first page, greater spacing between the lines, and did not include an arbitration agreement.

At the hearing, Planet argued that the arbitration agreement was subsumed within the larger employment agreement, and that Hurst’s affidavit was insufficient to show that he did not agree to arbitrate his claims. Planet also noted that its motion included an affidavit from another employee who swore that the arbitration agreement is signed by all employees and was signed by Hurst. Counsel represented to the trial court that there is no other agreement signed by Hurst and that Hurst had presented no evidence that the arbitration provisions had been inserted into another document Hurst had signed. Planet did not call any witnesses.

In response, Hurst’s counsel referred the trial court to Section 171.021(b) of the Civil Practice and Remedies Code, and noted that if the non-movant produces evidence controverting the existence of a valid arbitration agreement, the trial court is required to conduct an evidentiary hearing. See Tex. Civ. Prac. & Rem. Code Ann. § 171.021(b)(West 2011). Counsel then announced that he intended to call Hurst to testify. He also lodged objections based on hearsay and the best evidence rule because Planet had failed to present the original document.

Planet countered that hearings to compel arbitration track those of a motion for summary judgment. If a material fact is at issue, the trial court may conduct an evi-dentiary hearing. It then argued that this hearing was not evidentiary in nature. Hurst had not presented evidence to support his hearsay objection, and the affidavit was made on the personal knowledge of the affiant. The trial court sustained the hearsay objection and explained, “If [702]*702there’s an exception, that’s how yon get it in.” The trial court then noted:

What I’m hearing is—he is saying, [“JWe’ve raised evidence contesting the admission of that affidavit.[”] You say, at that point, [“]it warrants an evidentiary hearing.[”]

To this, Planet responded, “Right.” Planet then argued that Hurst had not presented evidence contesting the fact that he had signed the arbitration agreement. The trial court observed, “I’m assuming he’s going to contest it. You know what? Just do it.”

Planet lodged no objection in advance of Hurst’s testimony. Hurst testified that Planet had never presented an arbitration agreement to him and that he had never signed one. Although he acknowledged that his signature appeared on the last page of the document, he claimed that he had signed a different document. In short, Hurst claimed that the signature on the document was a forgery.

After Hurst had testified and prior to cross-examination, Planet objected to the admission of evidence and complained that it had not had an opportunity to present witnesses. Nonetheless, without seeking or obtaining a ruling, counsel then remarked, “But I’m happy to move forward since the Court certainly does. I just want to put my objection on the record,” See Tex. R. App. P. 33.1(a). The following colloquy then occurred:

THE COURT: That you didn’t think you would need to call witnesses and then—
[PLANET FITNESS]: Correct, Judge. I understood this to be—
THE COURT: This is a motion to compel arbitration.
[PLANET FITNESS]: Right, which is to be—
THE COURT: Your motion to compel arbitration.
[PLANET FITNESS]: Correct, Judge.
THE COURT: I know it’s correct. I’m looking at the docket.
[PLANET FITNESS]: As I understood the process from the Texas Supreme Court is that the parties submit affidavits, which they did in this case. And if the court does decide that there’s a material issue fact dispute, then the court is to hold an evidentiary hearing.
THE COURT: You don’t think there’s a material issue of fact here in dispute?
[PLANET FITNESS]: Not based on his affidavit, Your Honor.
THE COURT: All right.

Planet then cross-examined Hurst. When asked whether his handwriting was on the first page and whether the name on that page was in his handwriting, Hurst answered they were not. He acknowledged that on the last page of the document, his street address, city, cell phone number, and printed name were in his handwriting, and that his signature appeared on the page as well. Hurst also acknowledged that he did not have a copy of the other document he had referenced, but described it as:

[A] summary of my employment with the contingency of a 90-day probation, where if I passed that, then—if I didn’t, they could terminate me at any time.

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Bluebook (online)
527 S.W.3d 699, 2017 Tex. App. LEXIS 8473, 2017 WL 3887351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitness-entertainment-ltd-v-hurst-texapp-2017.