COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
NUMBER 13-09-00424-CV
WINDSOR NURSING CENTER PARTNERS OF CORPUS CHRISTI, LTD., D/B/A CORPUS CHRISTI NURSING AND REHABILITATION CENTER, ET AL, Appellants,
v.
KATHLEEN YESIAN, BELINDA GOOD, JESSICA A. ROSAS, PATY SIEBER YOUNG, AND WENDI MARTINEZ, Appellees.
On appeal from the County Court at Law No. 4 of Nueces County, Texas.
NUMBER 13-09-00452-CV
IN RE WINDSOR NURSING CENTER PARTNERS OF CORPUS CHRISTI LTD., D/B/A CORPUS CHRISTI NURSING AND REHABILITATION CENTER, REGENCY NURSING AND REHABILITATION CENTERS, INC., WINDSOR NURSING AND REHABILITATION CENTER, INC., WINDSOR CORPUS CHRISTI NURSING CENTER, INC., HEBER LACERDA, AND DONALD KIVOWITZ
On Petition for Writ of Mandamus.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Benavides Memorandum Opinion by Justice Benavides
By petition for writ of mandamus and appeal, Windsor Nursing Center Partners of
Corpus Christi, Ltd., d/b/a Corpus Christi Nursing and Rehabilitation Center, Regency
Nursing and Rehabilitation Centers, Inc., Windsor Nursing and Rehabilitation Center,
Inc., Windsor Corpus Christi Nursing Center, Inc, Heber Lacerda, and Donald Kivowitz,
(hereinafter collectively referred to as ―Windsor‖) contend that the trial court abused its
discretion in denying their motion to compel arbitration. We affirm the trial court‘s order
in appellate cause number 13-09-00424-CV and deny the petition for writ of mandamus
in appellate cause number 13-09-00452-CV.
I. BACKGROUND
Windsor operates a nursing home in Corpus Christi, Texas. Appellees and real
parties in interest, Kathleen Yesian, Belinda Good, Jessica A. Rosas, Paty Sieber
Young, and Wendi Martinez, were employed by Windsor as nurses. Alleging that the
administrator of the nursing home subjected them to physical, sexual, and emotional
abuse, these employees filed suit against Windsor on August 13, 2008, including claims 2 of sexual assault, offensive touching, premises liability, negligence, and gross
negligence.1
On October 24, 2008, Windsor filed a ―Motion to Stay Litigation and Compel
Arbitration‖ pursuant to section 171.021 of the Texas Civil Practice and Remedies Code.
See TEX. CIV. PRAC. & REM. CODE ANN. § 171.021 (Vernon 2005).2 Windsor alleged that
its employees were bound to arbitrate their claims based on acknowledgments that the
employees signed as part of their employee application process. These
acknowledgments contained arbitration agreements:
ARBITRATION AGREEMENT
The Company and applicant (―Applicant‖) mutually agree, if elected in accordance with this Arbitration Agreement, to the resolution, through final and binding arbitration, of any and all legal or equitable disputes or claims between them, including but not limited to those claims or disputes relating to or arising from or out of the employment relationship or hiring process between the Company and Applicant, including, without limitation, claims and disputes pertaining to Applicant‘s hiring.
The motion to compel arbitration attached copies of the five employees‘
1 Intervenor, Gotcher Construction, Inc., the defendant below who owned the premises at issue, filed a ―Motion in Support of Original Petition for Writ of Mandamus‖ in cause number 13-09-00452-CV. This motion is DISMISSED as moot. 2 Appellants filed a separate proceeding in federal court to compel arbitration, which was dismissed for lack of jurisdiction. Windsor Nursing Ctr. Partners of Corpus Christi, Ltd v. Yesian, No. V-09-08, 2009 U.S. Dist. LEXIS 25795, at **7-8 (S.D. Tex. Mar. 30, 2009) (―In sum, the parties are not diverse, the FAA does not independently grant jurisdiction over petitions to compel arbitration, a ‗look through‘ at the underlying State Action reveals that it does not arise under federal law, the complete preemption doctrine does not convert that state-law-based action into a federal one, and the Constitution does not independently grant jurisdiction. Thus, the Court has no subject matter jurisdiction and the cause must be dismissed.‖). 3 acknowledgments, which included the foregoing language and which were signed by
plaintiffs; however, the motion to compel was neither verified nor supported by affidavits
or other evidence.3
On November 19, 2008, the employees filed their ―Plaintiffs‘ Response to the
. . . Motions to Stay Litigation and Compel Arbitration under Texas Civil Practice &
Remedies Code § 171.021.‖ In their response, the employees contended that: the
Texas Arbitration Act was inapplicable; the arbitration agreements were not within the
scope of the Texas Arbitration Act; and Windsor failed to carry its burden to show that
the Texas Arbitration Act required arbitration.
On November 21, 2008, Windsor filed a ―Notice of Election to Arbitrate,‖ whereby
it asserted that it was exercising its right to elect arbitration under ―the Federal Arbitration
Act, the Texas General Arbitration Act[,] and at common law.‖ Windsor attached the
aforementioned employee acknowledgments to its election; however, the notice of
election was neither verified nor supported by affidavit.
On May 5, 2009, Windsor filed ―Defendant‘s Reply to Plaintiffs‘ Response to
Motion to Compel Arbitration.‖ In this document, Windsor expounded on its alleged
right to arbitrate and provided argument disputing regarding some of the plaintiffs‘
defenses to arbitration.
3 The original ―Motion to Stay Litigation and to Compel Arbitration‖ was filed by Windsor Nursing Center Partners of Corpus Christi, Ltd., d/b/a Corpus Christi Nursing and Rehabilitation Center. Regency Nursing and Rehabilitation Center, Inc., Windsor Nursing and Rehabilitation Center, Inc., Windsor Corpus Christi Nursing Center, Inc., Heber Lacerda, and Donald Kivowitz each filed individual motions to adopt the original motion to compel. Subsequent filings generally followed this same pattern of adoption. 4 On May 6, 2009, the employees filed a first amended original petition and a
―Sur-Reply Concerning the Nursing Home Defendants‘ Motions to Stay Litigation and
Compel Arbitration Under Texas Civil Practice & Remedies Code § 171.021.‖ In
addition to the arguments previously raised, the employees contended that: Windsor
had not proven a valid arbitration agreement; Windsor failed to timely assert that the FAA
applied, and if the FAA did apply, then Windsor had not proven the transaction affected
interstate commerce; the FAA cannot preempt the employees‘ claims under labor code
section 406.033 under the McCarran-Ferguson Act, 15 U.S.C. § 1012; and that any
purported pre-injury agreement to waive punitive damages is unconscionable and
unenforceable. See TEX. LAB. CODE ANN. § 406.033 (Vernon 2006) (providing that
causes of action against a non-subscribing employer to recover damages for personal
injuries or death sustained by an employee in the course and scope of the employment
may not be waived by an employee before the employee‘s injury or death); see also 15
U.S.C. § 1012(b) (2006) (providing that state laws enacted for the purpose of regulating
insurance prevail over general federal laws that do not specifically relate to the business
of insurance).
On May 18, 2009, Windsor filed a ―Supplemental Motion to Stay Litigation and
Compel Arbitration.‖ This document addressed and expounded on legal arguments
made in support of arbitration. Also that day, Windsor filed an ―Amended Notice of
Submission Regarding Motion to Stay Litigation and Compel Arbitration‖:
PLEASE TAKE NOTICE [Windsor‘s] pending Motion to Stay Litigation and to Compel Arbitration of Plaintiffs‘ claims pursuant to the Federal
5 Arbitration Act, the Texas General Arbitration Act[,] and at common law has been presented to the County Court at Law No. 4 for Nueces County, Texas for consideration and ruling by submission on Friday, May 22, 2009.
On May 21, 2009, the employees filed an additional response to Windsor‘s motion
to compel, again asserting that Windsor had failed to prove an agreement to arbitrate
and specifically pointing out, in relevant part, that Windsor‘s ―evidence‖ consisted of
unsworn copies of purported arbitration agreements which were not properly identified or
authenticated.
The following day, May 22, 2009, the date of submission, Windsor filed the
affidavits of Julie Kemp and Daniel DeLeon. DeLeon‘s affidavit addressed Windsor‘s
activity in interstate commerce. Kemp‘s affidavit addressed the employees‘
acknowledgments as business records. Based on the record before us, Windsor
neither filed a motion for leave to file the affidavits, nor did it file them in conjunction with
a supplemental motion to compel arbitration. In its brief, Windsor contends that its ―May
22, 2009, filing letter transmitted the two affidavits by hand delivery to the district clerk
and to respondent‘s court coordinator.‖ This filing letter, which is not file-stamped, is
included in Windsor‘s appendix, but is not included in the supplemental clerk‘s record
containing these affidavits. See Cantu v. Horany, 195 S.W.3d 867, 870 (Tex.
App.–Dallas 2006, no pet.) (―An appellate court cannot consider documents cited in a
brief and attached as appendices if they are not formally included in the record on
appeal.‖); Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.—Houston [1st Dist.] 1999, no
pet.) (same).
6 On June 17, 2009, the trial court rendered the following order denying Windsor‘s
motion to compel arbitration:
On this, the 22nd day of May, 2009, came on to be considered by submission and without hearing [Windsor]‘s Motion to Stay Litigation and to Compel Arbitration. The Court hereby sustains Plaintiffs‘ objections to Movant‘s unsworn evidence and DENIES the Motion to Stay Litigation and to Compel Arbitration is hereby DENIED.
Following entry of this order, Windsor did not move for rehearing or otherwise inform the
trial court that it had filed affidavits pertaining to the issue of arbitrability on the date of
submission. On July 21, 2009, Windsor filed additional affidavits and its notice of
appeal. On August 4, 2009, Windsor filed the petition for writ of mandamus currently
under review. The Court requested and received a response to the petition for writ of
mandamus from the employees and has further received multiple supplemental briefs
from both Windsor and the employees.
Windsor raises six issues on appeal. By its first four issues, it argues that the
trial court abused its discretion by not compelling arbitration: (1) when presented with
valid and authenticated arbitration agreements and the claims in dispute are within the
scope of the agreements; (2) because the employees did not present evidence that (a)
Windsor waived its right to arbitrate or (b) the arbitration agreements were either
unconscionable, invalid without signatures of counsel, or subject to any other valid
defense; (3) because the Federal Arbitration Act (―FAA‖) preempts Texas state law,
including the Texas Arbitration Act (―TAA‖) and the Texas Workers Compensation Act;
and (4) because the parties agreed to arbitrate under the FAA, and in any event, the
7 uncontested evidence demonstrates that the nursing facility business affects interstate
commerce. By its last two issues, Windsor contends that the employees‘ ―arguments in
opposition to arbitration are without merit‖ and the ―Texas case law trend mandates
arbitration in this case.‖ By mandamus, Windsor reiterates the first four issues raised in
its appeal. In contrast, the employees contend that the trial court did not abuse its
discretion in refusing to compel arbitration because, inter alia, Windsor failed to meet its
burden to prove valid arbitration agreements; the TAA precludes arbitration of personal
injury claims; the McCarran-Ferguson Act prevents the FAA from preempting and
requiring arbitration of non-subscriber claims; the waiver of punitive damages must be
severed from the arbitration clause; and intervenor, Gotcher Construction, is entitled to
no relief.
II. FEDERAL ARBITRATION ACT AND TEXAS ARBITRATION ACT
The TAA and FAA provide alternative vehicles for relief. See In re Educ. Mgmt.
Corp., 14 S.W.3d 418, 425 (Tex. App.–Houston [14th Dist.] 2000, orig. proceeding). A
trial court‘s order denying a motion to compel arbitration may be reviewed by
interlocutory appeal when the motion is brought under the TAA. TEX. CIV. PRAC. & REM.
CODE ANN. § 171.098(a)(1) (Vernon 2005). When the order at issue was signed,
mandamus was the appropriate vehicle to challenge an order denying arbitration under
the FAA.4 In re Bank One, N.A., 216 S.W.3d 825, 826 (Tex. 2007) (orig. proceeding)
4 Section 51.016 of the Civil Practice and Remedies Code was amended, effective September 1, 2009, to allow an interlocutory appeal of an order denying a motion to compel arbitration under the FAA. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.016 (Vernon Supp. 2010). Section 51.016 does not apply to 8 (per curiam); EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 91 (Tex. 1996) (per curiam).
Ordinarily, we first determine whether the FAA or the TAA applies because the
inquiry is dispositive of our jurisdiction. Okorafor v. Uncle Sam & Assocs., 295 S.W.3d
27, 35 (Tex. App.–Houston [1st Dist.] 2009, pet. denied). In the instant case, the
employee acknowledgment provides that:
This Agreement shall be enforceable under the Texas General Arbitration Act, the Federal Arbitration Act and at common law. The arbitration hearing and all related proceedings shall be conducted in Victoria County, Texas, unless otherwise agreed. The parties agree that the arbitrator will apply the substantive law of the state of Texas, or federal law, as applicable to the claim asserted. The Texas Rules of Evidence and Civil Procedure will apply to such proceedings.
If both the FAA and the TAA apply, then we possess concurrent interlocutory appellate
jurisdiction and mandamus jurisdiction. In re D. Wilson Constr. Co., 196 S.W.3d 774,
778-79 (Tex. 2006) (orig. proceeding); Wachovia Sec., LLC v. Mims (In re Wachovia
Sec., LLC), 312 S.W.3d 243, 246 (Tex. App.–Dallas 2010, no pet.) (combined appeal &
orig. proceeding).
III. ARBITRATION
A party seeking to compel arbitration has the initial burden to establish the
arbitration agreement‘s existence and to show that the claims asserted fall within the
agreement‘s scope. In re Kellogg Brown & Root, 80 S.W.3d 611, 615 (Tex.
this matter because the order at issue was signed on June 17, 2009 and this appeal was initiated before September 1, 2009. Act of May 31, 2009, 81st Leg., R.S., ch. 820, §§ 1, 2, 3, 2009 TEX. GEN. LAWS 820 (―The change in law made by this Act does not apply to the appeal of an interlocutory order in an action pending on the effective date of this Act if the appeal of the order is initiated before the effective date of this Act.‖).
9 App.–Houston [1st Dist.] 2002, orig. proceeding); Mohamed v. Auto Nation USA Corp.,
89 S.W.3d 830, 836 (Tex. App.–Houston [1st Dist.] 2002, no pet.) (combined appeal &
orig. proceeding) (―The burden of showing one‘s status as a party or one‘s right to
enforce, as with the overall burden of establishing the arbitration agreement‘s existence,
is generally evidentiary.‖); In re Koch Indus., Inc., 49 S.W.3d 439, 444 (Tex. App.–San
Antonio 2001, orig. proceeding) (―The party seeking arbitration has the initial burden to
present evidence of an arbitration agreement.‖). If the party seeking arbitration carries
its initial burden, the burden then shifts to the party resisting arbitration to present
evidence on its defenses to the arbitration agreement. See In re Oakwood Mobile
Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999) (orig. proceeding).
One of our sister courts has explained that a motion to compel arbitration should
be treated as ―essentially a motion for summary judgment, subject to the same
evidentiary standards.‖ In re Jebbia, 26 S.W.3d 753, 756-57 (Tex. App.–Houston [14th
Dist.] 2000, orig. proceeding); see also In re Jim Walter Homes, Inc., 207 S.W.3d 888,
896-97 (Tex. App.–Houston [14th Dist.] 2006, orig. proceeding). The party alleging an
arbitration agreement must present ―complete summary proof of his ‗case-in-chief‘‖ that
an agreement to arbitrate requires arbitration of the dispute. In re Jebbia, 26 S.W.3d at
756-57. Once this is accomplished, the party resisting arbitration may raise an issue of
material fact about his opponent‘s proof or present some evidence supporting every
element of a defensive claim that there is no enforceable agreement to arbitrate. See
id. Only if a material issue of fact is raised is an evidentiary hearing necessary. Id.
10 In Jack B. Anglin Co., Inc. v. Tipps, the Texas Supreme Court defined the proper
circumstances under which a trial court should hold a full evidentiary hearing on a motion
to compel arbitration:
Because the main benefits of arbitration lie in expedited and less expensive disposition of a dispute, and the legislature has mandated that a motion to compel arbitration be decided summarily, we think it unlikely that the legislature intended the issue to be resolved following a full evidentiary hearing in all cases. We also envision that the hearing at which a motion to compel arbitration is decided would ordinarily involve application of the terms of the arbitration agreement to undisputed facts, amenable to proof by affidavit. With these considerations in mind, we hold that the trial court may summarily decide whether to compel arbitration on the basis of affidavits, pleadings, discovery, and stipulations. However, if the material facts necessary to determine the issue are controverted, by an opposing affidavit or otherwise admissible evidence, the trial court must conduct an evidentiary hearing to determine the disputed material facts.
842 S.W.2d 266, 269 (Tex. 1992). The supreme court reaffirmed and reapplied these
principles in 2008. See In re Poly-America, L.P., 262 S.W.3d 337, 354 (Tex. 2008)
(―Because the only facts Luna presented on the motion to compel were uncontroverted
under this standard—Luna‘s affidavits accompanying his original petition were neither
contradicted nor challenged in Poly-America‘s response—we believe the court of
appeals acted properly in crediting those facts on appeal.‖). It is an abuse of discretion
to grant or deny arbitration without holding an evidentiary hearing if there are disputed
issues of material fact. See, e.g., In re Wash. Mut. Fin., L.P., 173 S.W.3d 189 (Tex.
App.–Corpus Christi 2005, orig. proceeding) (holding that the trial court abused its
discretion by sustaining a defense to arbitration without holding an evidentiary hearing to
determine disputed issues of material fact); Rogers v. Maida, 126 S.W.3d 643, 646 (Tex.
11 App.–Beaumont 2004, orig. proceeding) (holding that the trial court erred in not
conducting an evidentiary hearing on arbitrability of dispute).
IV. ANALYSIS
In the instant case, Windsor did not request an oral or evidentiary hearing on its
motion to compel arbitration and, instead, set its motion to compel for submission to the
trial court on a specified day, but not at a specified time. See, e.g., Michiana Easy Livin’
Country, Inc. v. Holten, 168 S.W.3d 777, 782 (Tex. 2005) (encouraging the submission
of written proof when testimony and evidence can fairly resolve factual issues). While
Windsor‘s motions to compel arbitration were filed in October and November 2008, the
affidavits in support of the motions to compel arbitration were not filed for approximately
six months after the motions themselves were filed, and were not filed until the date of
submission itself, May 22, 2009. Windsor did not file a motion for leave to file the
affidavits, and it did not file the affidavits in conjunction with a supplemental motion to
compel arbitration. The submission date was neither reset nor revised, and Windsor
did not request that the submission date be extended or continued.
When the trial court sustained appellees‘ objections to Windsor‘s ―unsworn‖
evidence, Windsor failed to request an evidentiary hearing, move for rehearing, or
otherwise inform the trial court that it had filed affidavits in support of its motions to
compel. Instead, Windsor filed its notice of appeal, concomitantly with filing additional
affidavits, and filed a petition for writ of mandamus asking this Court to compel the trial
court to grant Windsor‘s motion to compel arbitration. We note, in this regard, that
12 Windsor does not complain that the trial court erred in failing to conduct an evidentiary
hearing.
By Windsor‘s first issue, Windsor alleges that the trial court abused its discretion
in refusing to order arbitration ―when presented with valid and authenticated arbitration
agreements and the claims in dispute are within the scope of the agreements.‖ We
disagree. The affidavits were not offered into evidence, and the trial court did not issue
an order excluding them. In examining a similar situation, the Texas Supreme Court
stated as follows:
There is an affidavit for a continuance in the transcript, indorsed, sworn to and filed by the clerk, but there does not appear to have been any action of the court upon it, nor does it appear that it had ever been submitted to the consideration of the judge, nor his attention in any way called to it. The record, therefore, does not show that there was a refusal on the part of the court to continue the case.
Pennell v. Lovett, 15 Tex. 265, 266, 1855 Tex. LEXIS 257, at *2 (1855); see In re Cont’l
Ins. Co., 994 S.W.2d 423, 427 (Tex. App.–Waco 1999, orig. proceeding) (―The affidavit
was not marked, offered or even discussed in the hearing that is the subject of this
mandamus proceeding. An affidavit that is simply filed with the clerk and is in no way
brought to the trial court‘s attention is not evidence.‖). Similarly, either on appeal or by
original proceeding, the trial court is not required to consider a motion unless it is called
to its attention. In re Smith, 263 S.W.3d 93, 96 (Tex. App.–Houston [1st Dist.] 2006,
orig. proceeding); Risner v. McDonald’s Corp., 18 S.W.3d 903, 909 (Tex.
App.–Beaumont 2000, pet. denied); Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.
App.–Houston [1st Dist.] 1994, writ denied). Accordingly, in the instant case, merely
13 showing that the affidavits were filed with the district clerk on the date of submission
does not impute the clerk‘s knowledge of the filing to the trial court, nor does the filing of
the affidavits with the court clerk in and of itself bring them to the attention of the trial
court. Cf. In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.–Texarkana 2008, orig.
proceeding) (―Showing that a motion was filed with the court clerk does not constitute
proof that the motion was brought to the trial court's attention or presented to the trial
court with a request for a ruling.‖); In re Davidson, 153 S.W.3d 490, 491 (Tex.
App.–Amarillo 2004, orig. proceeding) (―A court is not required to consider a motion not
called to its attention.‖); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001,
orig. proceeding) (―[M]erely stating that something was ‗properly filed‘ is insufficient basis
from which to reasonably infer that the trial court had notice of that something and the
need to act on it.‖).
Texas Rule of Appellate Procedure 33.1 provides that, as a prerequisite to
presenting a complaint for appellate review, the record must show that the complaint was
made to the trial court by a timely request, objection, or motion that stated the grounds
for the ruling sought with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context. TEX. R. APP. P.
33.1(a)(1)(A); see Wal-Mart Stores v. McKenzie, 997 S.W.278, 280 (Tex. 1999) (―To
preserve a complaint for appellate review, a party must present to the trial court a timely
request, motion, or objection, state the specific grounds therefore, and obtain a ruling.‖).
Preservation also requires one of three things: (1) an express ruling by the trial court;
14 (2) an implicit ruling by the trial court; or (3) a refusal to rule by the trial court, coupled
with an objection to that refusal by the complaining party. See TEX. R. APP. P. 33.1(a)(2).
Stated otherwise, if a party does not present an argument to the trial court through a
timely request, objection, or motion, the argument is not preserved and cannot be made
on appeal. See id. at R. 33.1(a)(1); see also Bates v. City of Beaumont, 241 S.W.3d 924,
929 (Tex. App.–Beaumont 2007, no pet.). This principle applies equally to parties
seeking a writ of mandamus. See In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 936,
937-38 (Tex. App.–Tyler 2005, orig. proceeding); In re Chavez, 62 S.W.3d at 228.5
Rule 33.1 ensures that the trial court has the opportunity to rule on matters for
which parties later seek review in the appellate court. In re E. Tex. Med. Ctr. Athens,
154 S.W.3d at 936; Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App.–Houston
[14th Dist.] 2000, pet. denied). Thus, as a general rule, a party may not raise an issue
for the first time on appeal. Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993). As
stated by the Texas Supreme Court:
Important prudential considerations underscore our rules on preservation. Requiring parties to raise complaints at trial conserves judicial resources by giving trial courts an opportunity to correct an error before an appeal proceeds. In addition, our preservation rules promote fairness among litigants. A party ―should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time.‖ Moreover, we further the goal of accuracy in judicial decision-making when lower courts have the opportunity to first consider and rule on error. Not only do the parties
5 To obtain mandamus relief for an alleged refusal to rule on a motion, a party must show that: (1) the trial court had a legal duty to act; (2) there was a demand for performance; and (3) there was a refusal to act. See O'Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992); In re Smith, 263 S.W.3d 93, 96 (Tex. App.–Houston [1st Dist.] 2006, orig. proceeding). 15 have the opportunity to develop and refine their arguments, but we have the benefit of other judicial review to focus and further analyze the questions at issue.
In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003) (orig. proceeding) (citations omitted). In
this case and on this record, Windsor has not demonstrated that it brought its affidavits to
the trial court‘s attention in connection with its motion to compel arbitration, either before
or after the order denying arbitration was issued. And, even assuming the trial court
was aware that the affidavits had been filed and failed to consider them, Windsor did not
preserve error by objecting to that refusal. See TEX. R. APP. P. 33.1(a)(2).
We further note that Windsor‘s issues on appeal are premised on its
―uncontested‖ evidence and the fact that the ―[e]mployees did not present any evidence‖
regarding their alleged defenses. Unlike other types of proceedings, such as those
pertaining to motions for summary judgment, arbitration determinations are not governed
by express rules or statutory authority providing specific time lines for filing motions,
responses, or evidence, or requiring a specific amount of notice prior to hearing. See
TEX. R. CIV. P. 87(1) (providing specific period for notice of a hearing on a motion to
transfer venue and providing specific deadlines for filing evidence), 120a (providing
deadlines for filing affidavits in support of special appearances), 166a(c) (providing
specific period for notice of hearing on motion for summary judgment and deadlines for
filing evidence). The rules of civil procedure and case law do, however, provide some
general authority. See, e.g., TEX. R. CIV. P. 21 (requiring that a motion and notice of
hearing be served not less than three days prior to hearing ―unless otherwise provided
16 by these rules or shortened by the court‖), 270 (court may permit additional evidence to
be offered at any time ―[w]hen it clearly appears to be necessary to the due
administration of justice‖ except for evidence on a controversial matter after a jury
verdict).6
We concur with the Tyler Court of Appeal‘s comments in assessing allegations
similar to those made by Windsor in this case:
[I]t is conceivable that a party could file a motion and set it for hearing three days later, thereby requiring the opposing party to file a response that same day, or risk not being able to present evidence at the hearing. We doubt Rule 21 requires that all motions and responses be filed and served at least three days prior to a hearing. Irrespective of this fact, this Court neither encourages nor endorses the use of the Rules of Civil Procedure, or, in circumstances like these, the absence of rules directly applicable to an issue, as a means to ambush opposing counsel. Such practice is clearly contrary to the objectives of the rules. See TEX. R. CIV. P. 1; see also Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996) (―The purpose of the rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the litigants‘ rights under established principles of
6 Texas Rule of Civil Procedure 270 provides that a trial court may permit additional evidence to be offered at any time when it clearly appears necessary to the administration of justice. TEX. R. CIV. P. 270. Rule 270 allows, but does not require, the court to permit additional evidence. Lopez v. Lopez, 55 S.W.3d 194, 201 (Tex. App.–Corpus Christi 2001, no pet.). However, the trial court should exercise its discretion liberally in the interest of permitting both sides to fully develop the case in the interest of justice. See Word of Faith World Outreach Ctr. Church v. Oechsner, 669 S.W.2d 364, 366-67 (Tex. App.–Dallas 1984, no writ). The trial court‘s determination regarding whether to allow additional evidence is reviewed under an abuse of discretion standard. Estrello v. Elboar, 965 S.W.2d 754, 759 (Tex. App.–Fort Worth 1998, no pet.). In determining whether to grant a motion to reopen, the trial court considers whether: (1) the moving party showed due diligence in obtaining the evidence; (2) the evidence is decisive; (3) reception of such evidence will cause undue delay; and (4) granting the motion will cause an injustice. Hernandez v. Lautensack, 201 S.W.3d 771, 778-79 (Tex. App.–Fort Worth 2006, pet. denied). A trial court does not abuse its discretion by refusing to reopen a case after evidence is closed if the party seeking to reopen has not shown diligence in attempting to produce the evidence in a timely fashion. See id.
17 substantive law.‖); Spiecker v. Petroff, 971 S.W.2d 536, 539 (Tex. App.–Dallas 1997, no pet.) (―The rules were not designed as traps for the unwary nor should they be construed in order to prevent a litigant from presenting the truth to the trier of fact.‖).
Gessmann v. Stephens, 51 S.W.3d 329, 340 (Tex. App.–Tyler 2001, no pet.); see
Rogers v. Maida, 126 S.W.3d 643, 646 (Tex. App.–Beaumont 2004, no pet.) (combined
appeal & orig. proceeding) (―Nevertheless, in the absence of any requirements that the
controverting evidence must be timely filed, we find the trial court erred in striking
Saldivar‘s affidavit and in failing to conduct an evidentiary hearing.‖).
We are mindful that an appellate court will not interfere with a trial court‘s broad
discretion to manage and control its docket absent a showing of clear abuse of that
discretion. See Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982). Moreover, we are
also aware that a party cannot lead a trial court into error and then complain about it later
on appeal. See Union City Body Co. v. Ramirez, 911 S.W.2d 196, 202-03 (Tex.
App.–San Antonio 1995, no writ); see, e.g., Kelly v. Cunningham, 848 S.W.2d 370, 371
(Tex. App.–Houston [1st Dist.] 1993, no writ). We note that Windsor did not claim below
and does not claim here that it was entitled to an evidentiary hearing. In any event,
Windsor bore the burden, by presenting summary evidence, to show the existence of an
arbitration agreement and that the claims at issue were within its scope. See In re
Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999); Anglin, 842 S.W.2d at
269. We hold that Windsor did not carry its initial burden of showing an arbitration
agreement that it could enforce. Accordingly, the trial court did not abuse its discretion
in denying the motion to compel arbitration. Because we have reached this conclusion,
18 we need not address other issues raised in these proceedings. See TEX. R. APP. P.
47.1.
V. CONCLUSION
The stay previously imposed by this Court is LIFTED. The trial court‘s order in
appellate cause number 13-09-00424-CV is AFFIRMED, and the petition for writ of
mandamus in appellate cause number 13-09-00452-CV is DENIED.
________________________ GINA M. BENAVIDES, Justice
Delivered and filed the 7th day of June, 2011.