MacY's Retail Holdings, Inc. v. the Finish Line, Inc. and Gregorio Rojo ( 2021 )

NUMBER 13-19-00417-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MACY’S RETAIL HOLDINGS, INC., Appellant,
v.
THE FINISH LINE, INC. AND
GREGORIO ROJO, Appellees.
On appeal from the 92nd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant Macy’s Retail Holdings, Inc. (Macy’s) appeals the trial court’s order
compelling arbitration in favor of appellees The Finish Line, Inc. and Gregorio Rojo.1 By
three issues, Macy’s argues: (1) the trial court abused its discretion when it refused to
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Finish Line has not filed a brief to assist us in the resolution of this matter.
compel arbitration of Rojo’s claims against Macy’s; (2) the trial court refused to apply the
theory of agency; and (3) the trial court refused to stay all proceedings pending the
completion of arbitration. We dismiss the appeal for lack of jurisdiction.
I. BACKGROUND
On March 14, 2010, Rojo applied for employment with Finish Line located within
Macy’s in La Plaza Mall. According to Finish Line’s pleadings, as a condition of
employment, Rojo agreed to arbitrate all claims and disputes arising out of his
employment with Finish Line. After Macy’s Loss Prevention Manager, Armando Martinez,
informed Finish Line that Rojo had been caught failing to charge customers for bagged
merchandise and unauthorized use of his employee discount, Rojo was fired. On April
12, 2018, Rojo sued Macy’s, Finish Line, and Martinez alleging false imprisonment, fraud,
and malice under a principal agent relationship.
Finish Line filed an application to compel arbitration. Finish Line asserted that the
Federal Arbitration Act (FAA) applied to Rojo’s claims and attached Rojo’s employment
application bearing Rojo’s signature, as well as a copy of the arbitration agreement
included in Rojo’s application file. Rojo responded that although the employment
application contained his signature, no agreement to arbitrate exists, he did not have
sufficient notice of an arbitration agreement, he never read the agreement or was
presented with it, and the agreement contained inconspicuous language. In the
alternative, Rojo argued that even assuming arguendo that a valid arbitration agreement
exists between Finish Line and himself, his claims were not subject to arbitration because
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Macy’s was not a signatory to the agreement.
Macy’s replied, arguing that even though it was not a signatory to the arbitration
agreement, it could nonetheless enforce the agreement under an agency theory that Rojo
referenced in his original petition. Moreover, Macy’s asserted it was a third-party
beneficiary of the agreement.
The trial court held a hearing on Finish Line’s application to compel arbitration. At
the hearing, Finish Line presented evidence that Rojo’s claims against it were subject to
arbitration. Finish Line produced Rojo’s employment file, which contained a signed
arbitration agreement. Macy’s argued that Rojo’s claims against it were also subject to
arbitration because of its agency relationship with Finish Line. Rojo responded to Finish
Line asserting that no agreement existed because he lacked notice of such an agreement.
In response to Macy’s agency allegation, Rojo stated that the “allegations and the petition
can always be amended based on whatever documents are co-offered by Defense based
on whatever relationship there is,” and he has “not yet reviewed what sort of relationship
that Macy’s and Finish Line had under their contractual agreement.”
On August 7, 2019, the trial court granted Finish Line’s motion to compel
arbitration, ordered Rojo to pursue all claims against Finish Line via arbitration, and
ordered all claims against Finish Line stayed pending arbitration. The order did not
address Rojo’s claims against Macy’s.
On August 8, 2019, the next day, Macy’s filed its “First Amended Original Answer
and Affirmative Defenses, and Crossclaims against [Finish Line] Subject to Motion to
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Compel Arbitration.” On August 9, 2019, two days after the trial court’s August 7 order,
Macy’s filed a motion to modify the arbitration order, or, in the alternative a motion for
reconsideration of the arbitration order and motion for expedited consideration. Macy’s
requested that the trial court “modify its order to specifically state that to the extent [Rojo]
seeks to pursue any of his claims contained in this lawsuit against [Finish Line] and
[Macy’s], he is ordered to do so through arbitration.” Macy’s also requested the order to
state Rojo’s claims “against [Finish Line] and [Macy’s] are hereby STAYED completely
until the completion of the arbitration process.”
On August 21, 2019, the trial court held a hearing on Macy’s motion. Both parties
filed proposed orders, and both parties attended the hearing. The trial court took Macy’s
motion under advisement. Before the trial court ruled on Macy’s motion, Macy’s filed this
appeal. See TEX. CIV. PRAC. & REM CODE ANN. § 51.016 (listing appealable and non-
appealable orders regarding arbitration and permitting interlocutory appeal of an order
denying application to compel arbitration).
II. JURISDICTION
By Macy’s first issue, Macy’s argues that the trial court “refus[ed] to order Mr. Rojo
to arbitrate his claims against Macy’s and refus[ed] to stay all proceedings pending
completion of arbitration.” Rojo asserts that “this Court lacks jurisdiction because the trial
court’s order is not appealable.” We agree with Rojo.
A. Applicable Law
The parties contend that the arbitration agreement at issue is governed exclusively
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by the FAA. Section 51.016 of civil practice and remedies code allows for state court
appeals in agreements governed by the FAA. See id. Pertinent to this case, a party may
appeal (1) an order refusing to stay litigation pending arbitration of its subject matter, (2)
denial of a petition to order arbitration, and (3) an order denying an application to compel
arbitration. Id. § 51.016(a) (incorporating grounds set forth in 9 U.S.C.A. § 16). Pursuant
to the FAA, “[t]here can be no immediate appeal of an order compelling arbitration if it
stays the underlying case, but there can be an appeal if the underlying case is dismissed,”
because such a judgment is “final, disposes of all parties and all claims in th[e] case, is
appealable, and disposes of th[e] case in the entirety.” In re Gulf Exploration, LLC, 289
S.W.3d 836, 839 (Tex. 2009) (quoting Childers v. Advanced Foundation Repair, 193
S.W.3d 897, 898 (Tex. 2006)). An appeal may not, however, be taken from an
interlocutory order (1) granting a stay of any action pending arbitration; (2) directing
arbitration to proceed; (3) compelling arbitration; or (4) refusing to enjoin an arbitration.
See 9 U.S.C.A. § 16; TEX. CIV. PRAC. & REM. CODE ANN. § 51.016.
B. Discussion
First, we note that Macy’s did not file an application to compel arbitration of Rojo’s
claims against it for the trial court to have ruled on, and Macy’s is not the applicant for this
stay. See 9 U.S.C.A. § 3 (stating that the trial court “shall on application of one of the
parties stay the trial of the action until such arbitration has been had in accordance with
the terms of the agreement, providing the applicant for the stay is not in default in
proceeding with such arbitration.”) (emphasis added). Instead, Finish Line filed an
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application to compel arbitration under the FAA and requested a stay of Rojo’s claims
against Finish Line. Finish Line’s motion did not address Rojo’s claims against Macy’s.
Therefore, the purpose of the trial court’s order was not to determine whether Macy’s was
subject to arbitration; its purpose was to rule on Finish Line’s motion. On August 7, 2019,
the trial court granted Finish Line’s application stating the following:
Came on this day for consideration [Finish Line’s] Motion to Compel
Arbitration of [Rojo’s] Claims and to Stay Litigation. After due consideration
of [Finish Line’s] Motion, the matters contained therein and arguments of
counsel, this Court finds that [Finish Line’s] Motion is meritorious and should
be in all things GRANTED.
It is therefore ORDERED, ADJUDGED and DECREED that [Finish
Line’s] Motion to Compel Arbitration of [Rojo’s] Claims and Stay Litigation
is in all things GRANTED.
It is further ORDERED that to the extent [Rojo] seeks to pursue any
of his claims contained in this lawsuit against [Finish Line,] he is ordered to
do so through arbitration with the American Arbitration Association.
Additionally, [Rojo’s] claims against [Finish Line] are hereby
STAYED completely until the completion of the arbitration process.
The trial court considered “Finish Line’s Motion to Compel Arbitration of Rojo’s claims and
to Stay Litigation,” expressly granted Finish Line’s application to compel arbitration, and
stayed the proceedings. The FAA expressly prohibits an appeal from an order compelling
arbitration. See 9 U.S.C.A. § 16(b) (providing that an appeal may not be taken from an
order compelling arbitration to proceed); In re Gulf Exploration, 289 S.W.3d at 840
(“Courts may review an order compelling arbitration if the order also dismisses the
underlying litigation so it is final rather than interlocutory.”).
Nonetheless, Macy’s claims the trial court’s order is final and appealable because
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it “is one which at least in part denies an application to compel arbitration.” We disagree.
There is no language in this order denying, in any part, Macy’s application to compel
arbitration. Instead, the order specifically granted Finish Line’s application for arbitration,
compelled arbitration, and unequivocally stayed Rojo’s claims against Finish Line pending
arbitration. Thus, this order is interlocutory and not appealable. See 9 U.S.C.A. § 16(a)
(explaining where appeals may be taken), (b) (setting out where appeals may not be
taken). Yet, Macy’s also argues that the language “in all things granted,” is not limited to
Rojo’s claims against Finish Line and encapsulates all Rojo’s claims, including his claims
against Macy’s: “[n]owhere does [Finish Line’s] Motion to Compel limit or qualify this
request to simply Mr. Rojo’s claims against Finish Line.” However, as previously stated,
an order compelling arbitration is not appealable unless the cause is dismissed. See 9
U.S.C.A. § 16(b).2
Macy’s asks us to “reverse the ruling of the trial court in refusing to order Mr. Rojo
to arbitrate his claims against Macy’s.” However, the trial court has yet to “refuse” to order
arbitration of Rojo’s claims against Macy’s as it has not ruled on the parties’ submitted
proposed orders following the hearing on Macy’s motion for modification and
reconsideration. Because the appealed order does not fall within any of the types of
appealable orders identified under the federal statute, we lack jurisdiction over this
2
Macy’s uses Deep Water Slender Wells v. Shell Int’l Exploration & Prod., 234 S.W.3d 679, 694
n.9 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) to support this position. However, the Fourteenth
Court of Appeals held that the language “in all things GRANTED” includes those “things” asserted in the
motion, and nowhere in the application did Finish Line request arbitration of Rojo’s claims against Macy’s.
See id.7
appeal. See TEX. CIV. PRAC. & REM CODE ANN. § 51.016.
III. CONCLUSION
We dismiss the appeal for lack of jurisdiction.3 See TEX. R. APP. P. 42.3(a).
JAIME TIJERINA
Justice
Delivered and filed on the
10th day of June, 2021.
3
Because we lack jurisdiction, we do not address Macy’s remaining issues. See TEX. R. APP. P.
47.1.
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