COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
MVT SERVICES, LLC, and JUAN GARCIA, § No. 08-23-00181-CV
Appellants, § Appeal from
v. § 448th Judicial District Court
ERIKA ROBLES, INDIVIDUALLY, AS § of El Paso County, Texas REPRESENTATIVE OF THE ESTATE OF ORLANDO ROBLES, and AS NEXT § (TC# 2022DCV3059) FRIEND OF K.R.; MARIA CASTILLO; ELAINNA ROBLES; ATHENA SCHMIDT; § MELINA ROBLES; BYANCA SANTOS; and PAULINA MERINO ON BEHALF OF § O.R.R., § Appellees.
MEMORANDUM OPINION
Orlando Robles and Appellant Juan Garcia were hired by OEP Holdings, LLC (OEP),
which leased their services to Appellant MVT Services, LLC (MVT) to perform work as truck
drivers. Following a collision that led to Orlando’s 1 death, his estate and various family members
(collectively, the Robles Family) sued Garcia and MVT (collectively, the MVT Appellants) for
wrongful death. The MVT Appellants moved to compel arbitration based on OEP’s arbitration
agreement they contend Orlando signed and they can enforce. The trial court denied the motion,
1 Because many of the Appellees share the same last name, we use Orlando’s first name for clarity. and the MVT Appellants appealed. Because we find that the MVT Appellants did not establish
their right to adopt the Plan, we affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On October 28, 2020, Garcia was driving an 18-wheeler tractor trailer on an interstate
highway near Roland, Oklahoma, when he collided with a stopped truck. Orlando was in the
sleeper berth at the time and sustained significant injuries, which led to his death.
A. The Robles Family’s lawsuits
After Orlando’s death, the Robles Family sued several defendants, including MVT and
Garcia, in an Oklahoma state court, where litigation ensued for approximately two years. After
settling with the other defendants, the Robles Family dismissed its claims against the MVT
Appellants without prejudice. Then in October 2022, the Robles Family brought a wrongful death
action against the MVT Appellants in El Paso, where Garcia resided. The Robles Family alleged
Orlando’s death was caused by Garcia’s negligence; MVT was liable for Garcia’s negligence
based on a respondent superior theory of liability; and MVT was negligent in hiring Garcia. The
same month, the MVT Appellants filed a joint answer to the petition, denying the Robles Family’s
claim and raising, inter alia, the affirmative defense of arbitration. They argued Orlando had
agreed to resolve “all workplace injury and negligence disputes” through binding arbitration,
which agreement was binding on his heirs.
(1) The MVT Appellants’ motion to compel arbitration
In May 2023, the MVT Appellants filed a joint motion to stay proceedings and compel
arbitration (motion to compel arbitration), alleging that when Orlando was first hired by OEP, he
signed an agreement to arbitrate contained in OEP’s Occupational Injury Benefit Plan (the Plan),
whereby he agreed to arbitrate all personal injury and wrongful death claims arising from his
2 employment. They alleged MVT had adopted the Plan, giving it the right to enforce the agreement
against the Robles Family as Orlando’s beneficiaries. The MVT Appellants did not provide a
separate analysis in their motion regarding Garcia’s right to enforce the agreement.
(2) The arbitration documents
In their motion, the MVT Appellants attached an affidavit from OEP’s Director of Human
Resources, John Gregory Ginger, wherein he averred that in lieu of subscribing to the Texas
Workers’ Compensation System, OEP provides self-funded workplace injury benefits to its
employees through its Occupational Injury Benefit Plan. Ginger explained that OEP’s Plan offers
its employees two coverage options: Tier 2 benefits, which offer a base amount of benefits but are
not subject to an arbitration agreement; and Tier 1 benefits, which offer an increased benefit
amount in exchange for an agreement to arbitrate certain claims. According to Ginger, when
Orlando was hired by OEP, he chose Tier 1 benefits and signed two documents reflecting his
agreement to arbitrate workplace injury or negligence claims.
(a) The SPD and SPD acknowledgment
Ginger attached to his affidavit the “Injury Benefit Plan and Summary Plan Description
Acknowledgement” (the SPD Acknowledgment). It purportedly contained Orlando’s electronic
signature, stating he had been given instructions on how to log into his “paperwork account” to
view the “Summary Plan Description (SPD) of the Occupational Injury Benefit Plan of OEP
HOLDING, LLC.,” and he had reviewed and understood the provisions of the Plan. 2 Ginger also
2 In a supplemental affidavit, Ginger provided a detailed description of OEP’s security features used to obtain Orlando’s electronic signature, in accordance with the Texas Uniform Electronic Transaction Act. See Tex. Bus. & Com. Code Ann. § 322.009. The Robles Family did not challenge the efficacy of those security features and therefore did not rebut the presumption that Orlando’s electronic signature on the documents was genuine. See Solcius, LLC v. Meraz, No. 08-22-00146-CV, 2023 WL 2261414, at *4–5 (Tex. App.—El Paso Feb. 27, 2023, no pet.) (mem. op.) (finding electronic signature on contract was genuine where party disputing its validity did not challenge the security features used to obtain it) (citing Aerotek, Inc. v. Boyd, 624 S.W.3d 199, 204 (Tex. 2021)).
3 attached to his affidavit a copy of the SPD, which described two tiers of coverage and provided
that participants electing to receive Tier 1 benefits (Tier 1 Participants) agree to resolve any
disputes regarding “covered claims,” including workplace injuries, under the terms of the
arbitration agreement set forth therein. 3 The SPD contained several provisions relating to
arbitration, including “Arbitration is the Exclusive Remedy for Covered Claims,” which provides:
Covered Claims shall be exclusively resolved by binding arbitration. While both Tier 1 Participants and Company retain all substantive legal rights and remedies under this Agreement, Tier 1 Participants and Company are both waiving all rights which either may have with regard to trial, whether jury or non-jury, in state or federal court for any Covered Claim.
The SPD defines “covered claims” as “any personal injury suffered by Tier 1 Participants
while in the Course and Scope of their employment with Company, including but not limited to,
claims for negligence, gross negligence, physical impairment, disfigurement, pain and suffering,
mental anguish, wrongful death [and] survival actions” and any expenses and damages “arising
out of or related to personal any injury.” The term “Company” is defined as “OEP and each of its
affiliates, related entities, subsidiaries, officers, directors, and employees.” A “Tier 1 Participant”
is defined as “a person who is employed by Company, has a Covered Claim and has elected to
receive Tier 1 benefits under this Plan” and expressly included “a Tier 1 Participant’s spouse,
children, parents, estate, successors and assigns.”
The SPD provides that the “Company and Tier 1 Participant intend and expressly agree
that any Covered Claim of Company’s officers, directors, agents, predecessors, successors, and
affiliated companies that arises from, relates to, or is derivative of any Covered Claim of Company,
3 We note that the Plan was not a contract of employment as contemplated by 9 U.S.C. § 1, which exempts from mandatory arbitration “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” including truck drivers. See 9 U.S.C. § 1 (“. . . nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”); In re Swift Transp. Co., Inc., 311 S.W.3d 484, 488–89 (Tex. App.—El Paso 2009, no pet.) (noting that truck drivers engaged in interstate commerce fall within the § 1 exemption).
4 shall be resolved according to the terms and conditions of this Agreement.” 4 And finally, the SPD
contains a provision with the heading “ADOPTION OF PLAN BY AFFILIATED
CORPORATION,” which states:
Affiliated Entities. An affiliated corporation or other entity to the Company may, with the approval of the Company, adopt this Plan by agreeing to be bound as a Company by limitations in this Plan, as applied to its eligible Participants, except as to those terms, if any, specifically described in the adopting resolutions or agreement.
In his first affidavit, Ginger averred that he was familiar with OEP’s “affiliated companies
who have adopted our Plan and have agreed to be bound as a Company by the limitations of our
Plan” and that “MVT is one of our affiliated companies that has agreed to be bound by our Plan.”
In a supplemental affidavit, Ginger attached copies of three documents that he asserted were
maintained as OEP business records, all of which were labeled “Unanimous Consent of Sole
Member and Managers of MVT Services, LLC. on Lieu of Annual Meeting.” The documents, the
first of which was dated July 1, 2019, approximately a year before Orlando’s accident, resolved
that “MVT Services, LLC, hereby adopts the OEP Holdings, LLC Work Related Injury Benefit
Plan 502, and its Amendments.” 5 Ginger expressed his opinion that MVT was “entitled to enforce
its right to compel arbitration against the claims asserted as a result of [Orlando’s] death while
[Orlando was] in the course and scope of his employment.”
(b) The Tier 1 election document
The other document Ginger attached to his affidavit was a copy of a document entitled
“OEP Holdings, LLC and Affiliates’ Occupational Injury Benefit Plan and Agreement to Arbitrate
4 The SPD also states: “Company and Tier 1 Participant intend and expressly agree that any Covered Claim of Claimant's spouse, children, parents, estate, successors and/or assigns that now exists or that may come into existence in the future which arises from, relates to, or is derivative of any Covered Claim, shall be resolved according to the terms and conditions of this Agreement.” 5 The two remaining documents were dated December 2020 and January 2022.
5 Election” (the Tier 1 election), which also purportedly contained Orlando’s electronic signature
and was dated the same day of his initial hire. The Tier 1 Election provided:
I understand that OEP Holdings, LLC and its affiliates (“OEP”) have adopted an Occupational Injury Benefit Plan (“Plan”) that offers Participants, subject to the terms and conditions of the Plan two tiers of no-fault benefits for injuries that they may suffer at work. I also understand that in order to receive the higher tier of benefits (Tier l), that OEP and I agree to resolve any disputes regarding workplace injuries under the terms and conditions of the Agreement to Arbitrate a copy of which I have been provided.
I understand that my election to receive the higher level of benefits in the Plan and to agree to the terms of the Agreement to Arbitrate is voluntary and optional on my part, but once I elect, the election is irrevocable. I understand that whether I elect to receive the higher level of benefits and agree to arbitrate or not does not change my employment status or alter the terms of my employment. I understand that electing to receive the higher level of benefits is not a condition of employment with OEP.
(3) The parties’ arguments in the trial court
The Robles Family opposed the motion to compel arbitration, arguing: the MVT
Appellants did not establish that Orlando’s signature was genuine or that the family’s claims came
within the scope of the agreement; the agreement was illusory; OEP breached the Plan by not
offering the Robles Family benefits, thus voiding the arbitration provision; the MVT Appellants
were estopped from arguing the Plan applies to their claims based on their contrary position in the
Oklahoma litigation; and the MVT Appellants impliedly waived their right to arbitrate by
substantially invoking the judicial process. The Robles Family also argued the MVT Appellants
failed to present any evidence that either Orlando or Garcia were “employees” of the Company
within the meaning of the Plan’s arbitration agreement. Finally, the Robles Family argued the
MVT Appellants were nonsignatories to OEP’s plan and arbitration agreement, and because MVT
provided no evidence that the parties intended its inclusion—other than a conclusory statement
that it was an “affiliated” company that adopted the Plan—the family had no right to enforce the
arbitration agreement.
6 (4) The trial court’s decision
Following a hearing, the trial court issued its order denying the MVT Appellants’ motion
to compel arbitration without issuing findings of fact or conclusions of law. The MVT Appellants
then filed this accelerated interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.016;
9 U.S.C. § 16(a)(1)(B). On appeal, the MVT Appellants raise one global issue with multiple
subparts, claiming the trial court erred by denying their motion to compel arbitration.
PRELIMINARY EVIDENTIARY CONSIDERATIONS
In the trial court, the MVT Appellants attached several exhibits from the Oklahoma
litigation in their reply in support of their motion to compel arbitration, which the Robles Family
contends we should not consider in our analysis based on improper authentication. 6 We address
the only two challenged exhibits relevant to our analysis.
The first relevant document is Raul Garcia’s (MVT’s Director of Legal Services) affidavit
in which he explains the relationship between OEP and MVT. We conclude that we may consider
this affidavit, as it was a self-authenticated document under Texas Rule of Evidence 902(8) and
Texas Government Code §312.011(1). See Tex. R. Evid. 902(8) (evidence that is self-
authenticating includes “[a] document accompanied by a certificate of acknowledgment that is
lawfully executed by a notary public or another officer who is authorized to take
acknowledgments”); Tex. Gov’t Code Ann. § 312.011(1) (outlining the statutory requirements of
an affidavit as a signed, written statement of facts sworn to before an officer authorized to
administer oaths and certified under his seal). To his affidavit, Garcia attached the “OEP and MVT
6 The Robles Family did not object to the admissibility of these exhibits in the trial court, but we may nevertheless consider their argument that the documents were not authenticated, as unauthenticated documents may not be used to support a motion to compel arbitration, and in turn, we may not consider unauthenticated documents in our analysis. Hernandez v. Gallardo, 594 SW.3d 341, 345 (Tex. App.—El Paso 2014, pet. denied) (recognizing that “[a] complete absence of authentication is a defect of substance which may be raised for the first time on appeal”).
7 Services Staff Leasing Agreement” signed on January 1, 2013 (the Leasing Agreement), which he
attested was a “true and correct copy of a business record” held by MVT. 7 We find that we may
also consider this document, as it was properly authenticated through Garcia’s attestation. See In
re Estate of Guerrero, 465 S.W.3d 693, 704 (Tex. App.—Houston [14th Dist.] 2015, pet. denied)
(recognizing that a properly sworn affidavit stating that “the attached documents are true and
correct copies of the original authenticates the copies” so that the copies are admissible in
evidence) (citing Republic Nat’l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986)
(per curiam)).
Second, for the same reasons, we find the affidavit of Rosanna Castro, MVT Services’
Director of Safety, in which she described the duties that Orlando and Garcia were performing on
the day of the accident, is an admissible self-authenticating document. We will therefore consider
her affidavit in our analysis as well.
STANDARD OF REVIEW AND APPLICABLE LAW
A defendant seeking to compel arbitration carries the burden of proving that a valid
arbitration agreement exists and that the plaintiffs’ claims fall within the agreement’s scope. In re
Rubiola, 334 S.W.3d 220, 223 (Tex. 2011) (orig. proceeding). Courts determine whether an
arbitration agreement exists by applying “ordinary principles of state contract law.” In re Kellogg
Brown & Root, Inc., 166 S.W.3d 732, 738 (Tex. 2005) (orig. proceeding). Thus, to demonstrate
the existence of a binding arbitration agreement, the moving party is required to show “(1) an offer;
(2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4)
7 The MVT Appellants also submitted documents from the Oklahoma litigation they claimed supported a finding that the Robles Family made judicial admissions in the Oklahoma court that Orlando had signed the arbitration agreement. On appeal, the MVT Appellants argue the documents were admissible, and they filed a motion requesting that we take judicial notice of the documents. Because we need not address those documents in our analysis, we deny as moot MVT’s motion to take judicial notice.
8 each party’s consent to the terms; and (5) execution and delivery of the contract with the intent
that it be mutual and binding.” APC Home Health Services, Inc. v. Martinez, 600 S.W.3d 381, 389
(Tex. App.—El Paso 2019, no pet.). “The trial court’s determination of the arbitration agreement’s
validity is a legal question subject to de novo review.” J.M. Davidson, Inc. v. Webster, 128 S.W.3d
223, 227 (Tex. 2003) (citing In re Kellogg Brown & Root, 80 S.W.3d 611, 615 (Tex. App.—
Houston [1st Dist.] 2002, orig. proceeding)).
If the proponent of arbitration offers prima facie evidence of a valid agreement that covers
the parties’ dispute, a presumption arises in favor of arbitrating the dispute, and the burden shifts
to the resisting party to raise an affirmative defense to enforcing that agreement. APC Home
Health, 600 S.W.3d at 388 (citing Ridge Nat. Resources, L.L.C. v. Double Eagle Royalty, L.P.,
564 S.W.3d 105, 118 (Tex. App.—El Paso 2018, no pet.); Royston, Rayzor, Vickery, & Williams,
LLP v. Lopez, 467 S.W.3d 494, 499 (Tex. 2015); In re Poly–America, L.P., 262 S.W.3d 337, 348
(Tex. 2008) (orig. proceeding)). Absent evidence of a valid defense, the trial court must compel
arbitration. J.M. Davidson, 128 S.W.3d at 227.
The Robles Family contested the validity of the arbitration agreement and its scope,
asserted several defenses to the enforcement of the arbitration agreement, and challenged the MVT
Appellants’ right to enforce the agreement. Because the trial court did not provide findings of fact
or conclusions of law, we must uphold the trial court’s decision on any appropriate legal theory
urged below. APC Home Health Services, 600 S.W.3d at 389 (citing Bonded Builders Home
Warranty Assn. of Texas v. Rockoff, 509 S.W.3d 523, 531–32 (Tex. App.—El Paso 2016, no pet.)).
THE MVT APPELLANTS AND THE RIGHT TO COMPEL ARBITRATION
Because our analysis turns on whether MVT was an affiliated corporation to OEP entitled
to adopt OEP’s Plan, we will address only that argument and assume without deciding that the
9 arbitration agreement between OEP and Orlando was valid and that the Robles Family’s claims
fall within its scope. We therefore begin and end our analysis with the MVT Appellants’ argument
that MVT was entitled to adopt the Plan.
A. Applicable law
In general, only the parties to an arbitration agreement may compel arbitration. See G.T.
Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 524 (Tex. 2015). However, an
arbitration obligation may also bind a nonsignatory under principles of contract law and agency.
In re Rubiola, 334 S.W.3d at 224 (citing In re Kellogg Brown & Root, 166 S.W.3d at 738). As
relevant here, “signatories to an arbitration agreement may identify other parties in their agreement
who may enforce arbitration as though they signed the agreement themselves.” Id. at 226. Whether
an arbitration agreement can be enforced by a nonsignatory depends on the parties’ intent as
expressed in their agreement. Id. at 224. The question of the parties’ intent in allowing a
nonsignatory to enforce an arbitration agreement is critical “because a party cannot be forced to
arbitrate absent a binding agreement to do so.” Jody James Farms, JV v. Altman Group, Inc., 547
S.W.3d 624, 632 (Tex. 2018) (“The involvement of a non-signatory is an important distinction
because a party cannot be forced to arbitrate absent a binding agreement to do so.”).
In construing a contract and the parties’ intent expressed therein, “[courts] examine and
consider the entire writing in an effort to harmonize and give effect to all the provisions of the
contract so that none will be rendered meaningless.” Italian Cowboy Partners, Ltd. v. Prudential
Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011). If the contract “can be given a certain or definite
legal meaning or interpretation, then it is not ambiguous and the court will construe the contract
as a matter of law.” Id. (quoting Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)). But if the
10 contract is subject to “two or more reasonable interpretations after applying the pertinent rules of
construction,” it is ambiguous, creating a fact issue on the parties’ intent. Id.
B. The MVT Appellants’ arguments
As set forth above, OEP’s Plan contains a provision entitled, “Adoption of Plan by
Affiliated Corporation,” which states: “[a]n affiliated corporation or other entity to the Company
may, with the approval of the Company, adopt this Plan by agreeing to be bound as a Company
by limitations in this Plan, as applied to its eligible Participants, except as to those terms, if any,
specifically described in the adopting resolutions or agreement.” The MVT Appellants—despite
being nonsignatories to the Plan and arbitration agreement contained therein—maintain that they
can compel arbitration because MVT adopted OEP’s Plan in accordance with the Plan’s
requirements, pointing to the various resolutions MVT passed proclaiming their intent to do so. In
turn, they contend that Garcia, as an MVT employee, also adopted the Plan—an argument they
did not make in the trial court—and they are therefore both entitled to enforce the arbitration
agreement against the Robles Family. 8 However, before demonstrating that it properly adopted
the Plan, MVT first had to show that it was an “affiliated corporation or other entity to the
Company,” thereby giving it the right to do so. For the reasons set forth below, we conclude it did
not.
8 In their reply brief, the MVT Appellants argue for the first time that Garcia is independently entitled to enforce the agreement because (1) Orlando agreed to arbitrate any work-related claims with the Company, (2) the Plan defines the term “Company” to include its employees, and (3) Garcia was an employee of the Company. We will not consider this argument in our analysis, as a party may not raise an argument for the first time in a reply brief. See, e.g., Blair v. Blair, 642 S.W.3d 150, 155, n. 2 (Tex. App.—El Paso 2021, no pet.) (citing Watret v. Watret, 623 S.W.3d 555, 563– 64 (Tex. App.—El Paso 2021, no pet.) (recognizing that Rule 38.3 of the Texas Rules of Appellate Procedure restricts reply briefs to addressing only matters raised in appellee’s brief and may not be utilized to present a new issue to the court)).
11 (1) The express terms of the agreement prevail.
Because the Plan does not define the term “affiliated,” we apply its common, ordinary
meaning, which we determine by looking to dictionary definitions then considering the term’s use
in other authorities. Anadarko Petroleum Corp. v. Houston Cas. Co., 573 S.W.3d 187, 192
(Tex. 2019); see also Van Dyke v. Navigator Group, 668 S.W.3d 353, 359 (Tex. 2023), reh’g
denied (June 16, 2023) (“Unless otherwise defined in the text, courts will adopt a term’s ordinary
meaning.”) (citing URI, Inc. v. Kleberg County, 543 S.W.3d 755, 763–64 (Tex. 2018)). “Affiliate”
generally means “a corporation that is related to another corporation by shareholdings or other
means of control; a subsidiary, parent, or sibling corporation.” Black’s Law Dictionary (11th ed.
2019). Webster’s defines “affiliate” as “an affiliated person or organization” and then defines
“affiliated” as “closely associated with another typically in a dependent or subordinate position.”
Affiliate, Merriam-Webster’s Online Dictionary, https://www.merriam-
webster.com/dictionary/affiliate (last visited April 16, 2024).
“Affiliate” is also defined in the Texas Business Organizations Code as “a person who
controls, is controlled by, or is under common control with another person.” Tex. Bus. Orgs. Code
Ann. § 1.002(1). Several courts have defined the term “affiliate,” when it is not otherwise defined
by contract or statute, to similarly mean a corporation that is related to another corporation through
its shareholdings or other means of control, such as through a parent and subsidiary relationship.
See, e.g., McLane Foodservice, Inc. v. Table Rock Restaurants, L.L.C., 736 F.3d 375, 378 (5th Cir.
2013) (applying Texas law to define “affiliate” as “a corporation that is related to another
corporation by shareholdings or other means of control; a subsidiary, parent, or sibling
corporation”); see also Vision Capital Real Estate, LLC v. Wurzak Hotel Group, No. 05-15-00917-
CV, 2016 WL 6093977, at *4 (Tex. App.—Dallas Oct. 19, 2016, no pet.) (mem. op.) (defining
12 “affiliate” as a “corporation that is related to another corporation by shareholdings or other means
of control” and as a “company effectively controlled by another or associated with others under
common ownership or control” (quoting Eckland Consultants, Inc. v. Ryder, Stillwell Inc., 176
S.W.3d 80, 88 (Tex. App.—Houston [1st Dist.] 2004, no pet.)); Wharton Physician Services, P.A.
v. Signature Gulf Coast Hosp., L.P., No. 13-14-00437-CV, 2016 WL 192069, at *5 (Tex. App.—
Corpus Christi–Edinburg Jan. 14, 2016, no pet.) (mem. op.) (defining “affiliate” as a “corporation
that is related to another corporation by shareholdings or other means of control; a subsidiary,
parent, or sibling corporation” and “more broadly as closely associated with another typically in a
dependent or subordinate position” (internal quotation marks omitted)).
MVT argues that the Plan does not just allow “affiliated corporations” to adopt the Plan,
but instead provides that “[a]n affiliated corporation or other entity to the Company” may adopt
the Plan (emphasis added). MVT reads “other entity” in isolation, without any supporting
argument or authority, and contends that at the least, it should be considered an “other entity” to
OEP. We do not read the Plan language to present two types of entities that may adopt the Plan,
i.e., “an affiliated corporation” and an “other entity.” Instead, we understand from the clear
language of the agreement that affiliated corporations and affiliated other entities may adopt the
Plan. See BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 130 (Scalia
& Garner 2012) (“Series-Qualifier Canon: When there is a straightforward, parallel construction
that involves all nouns . . . in a series, a prepositive . . . modifier normally applies to the entire
series.”); Iliff v. Iliff, 339 S.W.3d 74, 80 (Tex. 2011) (interpreting the word “intentional” as
modifying both unemployment and underemployment in statute stating “intentional
unemployment or underemployment”).
13 (2) There is no evidence of affiliation in the record.
We next look to the record to determine whether MVT provided evidence of affiliation,
e.g., evidence that OEP controlled MVT or that the two were related by means of common control
or ownership. MVT’s only “evidence” of affiliation was from OEP’s Human Resources Director,
John Gregory Ginger, who averred that “MVT Services is one of [OEP’s] affiliated companies . .
. . ” While Ginger could speak to MVT’s adoption of the Plan based on OEP’s business records
and his familiarity with the same, he offered no basis for concluding that the Plan gave MVT the
authority to adopt the plan in the first instance, i.e., MVT’s affiliate status. See In re Macy’s Texas,
Inc., 291 S.W.3d 418, 419 (Tex. 2009) (per curiam) (“On that issue the affidavit was conclusory
rather than conclusive, failing to establish any basis for the affiant’s knowledge of corporate
structure or attach any supporting documents whatsoever[]” speaking to affiliation).
The evidentiary standards for a motion to compel arbitration are the same as for a motion
for summary judgment. Fitness Entm’t Ltd. v. Hurst, 527 S.W.3d 699, 704 (Tex. App.—El Paso
2017, pet. denied) (citing In re Jebbia, 26 S.W.3d 753, 756–57 (Tex. App.—Houston [14th Dist.]
2000, orig. proceeding)). It is well-established that a court will not consider a conclusory affidavit
as evidence in support of either a motion for summary judgment or a motion to compel arbitration.
See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (discussing conclusory
affidavits in the summary judgment context); TMI, Inc. v. Brooks, 225 S.W.3d 783, 794 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied) (discussing conclusory affidavits in the context of
a motion to compel arbitration). A “conclusory statement” in an affidavit “is one that does not
provide the underlying facts to support the conclusion.” Cnty. of El Paso v. Aguilar, 600 S.W.3d
62, 77 (Tex. App.—El Paso 2020, no pet.). “Conclusory affidavits are not enough to raise fact
issues,” as “[t]hey are not credible, nor susceptible to being readily controverted.” Ryland Group,
14 Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Therefore, conclusory statements in an affidavit
“cannot support a judgment even when no objection was made to the statements at trial.” Kmart
Stores of Tex., L.L.C. v. Ramirez, 510 S.W.3d 559, 567 (Tex. App.—El Paso 2016, pet. denied)
(quoting Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex.
2004)).
In sum, the Plan defines “Company” as “OEP and each of its affiliates, related entities,
subsidiaries, officers, directors and employees.” Because the Plan does not define the term
“affiliates,” we apply the common definition of affiliate, as set forth above. And there is no
evidence in the record to show MVT falls within that definition.
(3) Parol evidence may not vary the Plan’s unambiguous terms.
MVT contends we should nevertheless consider how a completely separate arbitration
agreement pertaining to different claims defines affiliates, which it asserts Orlando also signed at
the time he was hired by OEP (the Mandatory Arbitration Agreement), when determining how to
define the term “affiliate” in the Plan documents. The Mandatory Arbitration Agreement, in which
Orlando agreed to arbitrate employment-related claims with OEP, 9 specifically defines the term
“affiliate” to mean “companies controlling, controlled by or under common control with OEP,” as
well as “any and all client companies to which any Employee is assigned to perform work.” 10
9 The Mandatory Arbitration Agreement was part of Orlando’s employment contract. The Robles Family points out, and we agree, that employment contracts involving truck drivers, such as Orlando, are exempt from mandatory arbitration under the FAA’s transportation-worker exemption found in 9 U.S.C. § 1. 10 To this point, the Robles Family posits that “[i]f the definition of ‘affiliate’ in the Mandatory Arbitration Agreement had the same meaning in [the Plan documents], OEP could have easily accomplished this by placing that definition in [the Plan documents].” We agree. We take OEP’s failure to include client corporations in the Plan documents’ definition of affiliates—and in specifying what companies were entitled to adopt the plan—as purposeful. See generally Transcon. Gas Pipeline Corp. v. Texaco, Inc., 35 S.W.3d 658, 667 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (where oil company excluded unproduced gas from excess-royalty coverage in an earlier document, thereby establishing that it knew how to create an exclusion, court found that its failure to do so in subsequent agreement was purposeful) (citation omitted).
15 As the Robles Family points out, the Plan contains an integration clause providing that the
“Arbitration Agreement is (1) the ‘complete agreement’ (2) that ‘supersedes any other agreement
regarding arbitration of Covered Claims,”’ which includes personal injury and wrongful death
claims such as the Robles Family’s claims. MVT therefore cannot rely on other documents
Orlando may have signed to impact terms of the Plan’s arbitration provisions. See generally West
v. Quintanilla, 573 S.W.3d 237, 243 (Tex. 2019) (“when parties have entered into a valid, written,
integrated contract, the parol evidence rule precludes [a court from considering] any prior or
contemporaneous agreement that addresses the same subject matter and is inconsistent with the
written contract”).
Moreover, because we find no ambiguity in the Plan’s terms regarding who may adopt the
Plan, MVT may not rely on parol evidence to vary its terms. “An unambiguous contract will be
enforced as written, and parol evidence will not be received for the purpose of creating an
ambiguity or to give the contract a meaning different from that which its language imports.”
David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008) (citing Universal C.I.T. Credit
Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951)). Only when a contract is ambiguous
may a court consider the parties’ interpretation and “admit extraneous evidence to determine the
true meaning of the instrument.” Id. at 450–51 (citing Nat’l Union Fire Ins. Co. of Pittsburgh,
Penn. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995) (per curiam)); see also Barrow-Shaver
Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d 471, 483 (Tex. 2019) (“The parol evidence rule
bars consideration of evidence that contradicts, varies, or adds to the terms of an unambiguous
written agreement.”). While “evidence of circumstances can be used to ‘inform the contract text
and render it capable of only one meaning,’ extrinsic evidence can be considered only to interpret
an ambiguous writing, not to create ambiguity.” Barrow-Shaver Res. Co., 590 S.W.3d at 483
16 (citing Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 450 (Tex. 2015) (emphasis added)
(citations omitted)).
We therefore conclude that the MVT Appellants did not establish their right to enforce the
arbitration agreement against the Robles Family. Accordingly, the trial court did not err by denying
the motion to compel arbitration.
The MVT Appellants’ sole issue on appeal is overruled.
CONCLUSION
We affirm the trial court’s judgment denying the motion to compel arbitration and remand
the matter to the trial court for further proceedings consistent with our opinion.
LISA J. SOTO, Justice
June 17, 2024
Before Alley, C.J., Palafox and Soto, JJ.