Mountain View Health & Rehabilitation Center, Inc., Creative Solutions in Healthcare, Inc., and Lidia Moya v. Mary Horton Keele ( 2024 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
MOUNTAIN VIEW HEALTH & § No. 08-23-00033-CV
REHABILITATION CENTER, INC.,
CREATIVE SOLUTIONS IN § Appeal from the
HEALTHCARE, INC., and LIDIA MOYA,
§ 210th Judicial District Court
Appellants,
§ of El Paso County, Texas
v.
§ (TC# 2022DCV1585)
MARY HORTON KEELE,
§
Appellee.
SUBSTITUTED MEMORANDUM OPINION
We withdraw our opinion and judgment of October 6, 2023, and substitute the following
opinion in its place. Appellee’s motion for rehearing is denied.
Appellee Mary Horton Keele sued Appellants Mountain View Health & Rehabilitation
Center, Inc. (Mountain View), Creative Solutions in Healthcare, Inc. (Creative Solutions), and
Lidia Moya (collectively, Premises Parties), alleging she slipped and fell on their premises “as an
employee.” The Premises Parties sought to compel arbitration under an employer-employee
arbitration agreement Keele signed, which identifies her employer only as “the facility.” We
conclude that because Keele admitted she signed the agreement, she cannot dispute its authenticity.
We further conclude that because Keele agreed to arbitrate with her employer, she cannot sue the
Premises Parties in that capacity then dispute that she agreed to arbitrate with them.
FACTUAL AND PROCEDURAL BACKGROUND
A. Keele’s lawsuit
Keele sued the Premises Parties, 1 alleging she was “on the premises owned, operated and
controlled by Defendants . . . as an employee when she . . . slipped and fell [on] water on the floor.”
Keele further alleged “[w]hile upon Defendants premises, [she] suffered bodily injuries as
a direct result of . . . a dangerous condition, which Defendant knew, or in the exercise of ordinary
care, should have known existed,” and “Defendant, its agents, servants and employees negligently
caused and/or negligently permitted such condition to exist and/or negligently failed to
appropriately warn [her], despite the fact that Defendants, its agents, servants and employees knew,
or in the exercise of ordinary care, should have known of the existence of the condition and that
there was a likelihood of someone being injured.” Keele added: “Alternatively, . . . [she] would
also show that Defendant owed a duty to [her], that Defendants breached that duty and that such
breach was a proximate cause of [harm] to [her].”
Keele additionally alleged Mountain View in particular “had a non-delegable duty to
provide a safe workplace to its employees,” “failed to ensure a safe workplace,” and “failed to
become a subscriber under the Worker’s Compensation Act,” but also alleged “Defendants” were
negligent in “[f]ail[ing] to properly train, educate, instruct, and supervise [her] in the performance
of her duties”; “[f]ail[ing] to furnish [her] with a safe place to work”; and “[f]ail[ing] to furnish
[her] with adequate, necessary, and suitable tools, appliances and equipment.” 2
In her demand for damages, Keele alleged she had “undergone medical treatment including
1
Keele also sued Encore Healthcare, LLC, which joined the motion to compel but is not a party to this appeal.
2
Keele alleged no individual acts or omissions by Moya, but identified her as “DOA of Mountain View.” Moya is
identified as “Director of Nursing—Mountain View” in Creative Solutions’ discovery responses.
surgical procedure, all of which were brought about by Defendants’ negligence in failing to adhere
to its non-delegable duty to provide a reasonably safe workplace.”
B. The motion to compel arbitration
After filing their answers, the Premises Parties filed a motion to compel arbitration,
contending: “[T]his lawsuit involves claims by [Keele] against Defendants stemming from injuries
[she] claims she incurred as a result of her employment with Defendants. The parties are bound by
the [attached] arbitration agreements.”
Two documents were attached to the motion. The first—entitled “Dispute Resolution and
Arbitration Policy” (Arbitration Policy)—states “the initiation and/or continuation of employment
with the facility after notice of this arbitration policy constitutes assent, acceptance, consent, and
consideration for this agreement to arbitrate.” The Arbitration Policy further states that claims
subject to arbitration include “claims for negligence, gross negligence, on-the-job injury; [and] all
lawsuits, claims, issues and disputes connected to, related to, arising from, accruing from and/or
arising out of the employment relationship between the employee and the facility,” and arbitration
is the “exclusive method” for resolving such claims and is “mutually binding” on the employee
and the facility and “their successors, subsidiaries, affiliates, assigns, beneficiaries, heirs, children,
spouses, parents and legal representatives.” The Arbitration Policy does not define “facility.”
The second document—entitled “Receipt, Safety Pledge and Arbitration
Acknowledgement” (SPD Acknowledgment)—states that by signing, the employee acknowledges
receipt of a Summary Plan Description. The SPD Acknowledgment further asserts the employee
agrees to follow “safety rules of the Company,” the employee must notify her supervisor if injured
on the job, and: “[T]his SPD includes a mandatory company policy requiring that claims or
disputes relating to the cause of an on-the-job injury (that cannot otherwise be resolved between
3
the Company and me) must be submitted to an arbitrator.” (emphasis in original). The SPD
Acknowledgment does not define “Company.”
Both documents were signed by Keele as “Employee.” Both documents were also signed
by Savannah Hayes, as “HR Coord. or Administrator” on the Arbitration Policy and as “Facility
HR or Admin.” on the SPD Acknowledgment, without identifying Hayes’s employer in either.
C. Keele’s response
In her response, Keele argued “[Mountain View] [bore] the burden to prove that an
enforceable arbitration agreement exists,” but failed to do so because “the absence of Mountain
View[’s] name as a party on the alleged ‘Mutual Agreement to Arbitrate’ renders it invalid.” Keele
elaborated:
On its four corners, the “Arbitration Agreement” does not state who are the parties.
. . .
Defendants’ Arbitration Policy is silent as to who the party is who is entering into
the contract. The policy simply states the “facility” but they fail to sufficiently
identify which party is entering into the contract. Therefore, there is not a “meeting
of the minds” as it relates to this agreement and therefore its void and null.
Keele further contended she had worked for Creative Solutions elsewhere in the past and,
on relocating to El Paso, “went back to Creative Solutions and asked if she could have a similar
position,” and “was immediately hired back.” In an affidavit, Keele stated, “[i]t was not until
receiving and reading Defendants’ Disclosure [in discovery] that I realized that Defendants claim
that my employer was Mountain View.” But while she contended she “always understood she was
going to work for Creative Solutions” and “always understood that her employer was Creative
Solutions,” Keele also acknowledged she “filed suit against Defendants . . . alleging negligence at
the time of the incident and as non-subscribers under the Texas Worker’s Compensation Act,” and
pleaded that Mountain View in particular “had a non-delegable duty to provide a safe workplace
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to its employees.” 3
D. The trial court hearing
The trial court held a hearing on the Premises Parties’ motion. None of the parties provided
additional evidence. The Premises Parties argued:
[T]he trial court is able to decide these issues on the basis of pleadings alone . . .
unless material facts necessary to determine the issue are controverted by opposing
affidavits or otherwise admissible evidence. In this case there is nothing that
[Keele’s] [c]ounsel has raised that controverts the arbitration agreement
whatsoever. She does not deny that she signed it. She does not deny that it exists,
just that she didn’t read or understand it, which is not a grounds to attack it under
the law.
In turn, Keele argued she “provided . . . three documents showing where she had the good-
faith basis that she works for Creative Solutions” and, moreover:
Creative Solutions has about . . . 50 different facilities in the State of Texas. Their
arbitration agreement says “the facility.” It doesn’t say Mountain View or that
[Keele]’s entering into any kind of arbitration with Mountain View. They could
have put “Mountain View[]” in “the facility” and instead they chose to keep it as
“the Facility.” That could mean a lot of things . . . and that creates a fact issue . . . .
Defendants haven’t provided any sworn testimony when they knew they could have
or should have. They did not. They only provided the arbitration agreement. And
3
Keele’s response also argued several affirmative defenses, contending that: (1) she did not receive notice of the
arbitration agreement; (2) the agreement was substantively unconscionable due to certain fees she would be charged;
and (3) the agreement was procedurally unconscionable, as she was given a “stack of documents to sign and
immediately return” to obtain employment and “Defendants took advantage of [her] disparate bargaining ability” in
requiring her to sign them. Keele does not argue these defenses on appeal, and we agree with the Premises Parties that
they lack merit. First, Keele’s signature on the documents constituted notice of the agreement. In re Dallas Peterbilt,
Ltd., L.L.P., 196 S.W.3d 161, 162–63 (Tex. 2006). Second, as the Premises Parties pointed out in the trial court, Keele
mistakenly believed that the American Arbitration Association (AAA), the named arbitrator in the agreement, would
charge her $5,100, its fee for a commercial arbitration, when in fact its applicable fee for a workplace arbitration was
$300. Third, unequal bargaining power does not, standing alone, support a finding of procedural unconscionability in
the absence of fraud or misrepresentation, which Keele did not allege. See APC Home Health Services, Inc. v.
Martinez, 600 S.W.3d 381, 395 (Tex. App.—El Paso 2019, no pet.) (recognizing that “unequal bargaining power does
not establish grounds for invalidating an arbitration agreement absent a well-supported claim that the agreement
resulted from the sort of fraud or overwhelming economic power that would provide grounds for revocation of any
contract”); see also In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005) (per curiam) (“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.”). Further, Keele argues for the first time on appeal that the Arbitration Policy’s cost-shifting
provision, which gives the arbitrator discretion to award attorney’s fees, is substantively unconscionable. But because
Keele failed to raise this issue in the trial court, we are unable to consider it on appeal. See APC, 600 S.W.3d at 389
(appellate court is “limited to considering the grounds presented to the trial court by the party resisting arbitration”).
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on its four corners, . . . it does not show that [Keele] entered into an arbitration
policy with Mountain View.
. . .
They chose to put “the facility” which could mean any of the 50 . . . that they have
in the State. And that’s what we have in evidence today.
Following the hearing, the trial court denied the motion to compel arbitration without
stating why. This appeal followed. In one global issue, the Premises Parties argue that because
they established the existence of a valid arbitration agreement and Keele failed to establish a
defense against it, the trial court erred in denying their motion to compel arbitration.
APPLICABLE LAW AND STANDARD OF REVIEW
A. Applicable law
A party seeking to compel arbitration must establish the existence of a valid arbitration
agreement. In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010). Arbitration
agreements are interpreted under traditional contract principles. In re Whataburger Restaurants
LLC, 645 S.W.3d 188, 194 (Tex. 2022). Under such principles, the fact that a party has signed an
arbitration agreement creates a “strong presumption” that it has consented to its terms. Wright v.
Hernandez, 469 S.W.3d 744, 756–57 (Tex. App.—El Paso 2015, no pet.); see also Rachal v. Reitz,
403 S.W.3d 840, 845 (Tex. 2013) (“Typically, a party manifests its assent by signing an
agreement.”). Further, the elements of a valid contract, include a “meeting of the minds.” Law
Office of Thomas J. Henry v. Cavanaugh, No. 05-17-00849-CV, 2018 WL 2126936, at *3
(Tex. App.—Dallas May 7, 2018, pet. denied). The term “meeting of the minds” refers to the
“parties’ mutual understanding and assent.” Id.If the moving party establishes a valid arbitration agreement, the burden shifts to the other
party to raise a defense against it. In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005) (per curiam).
6
B. Standard of review
We review a trial court’s ruling on a motion to compel arbitration under an abuse of
discretion standard. Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). In doing so, we
defer to the trial court’s factual findings if supported by evidence but review its legal conclusions
de novo. Id. When a trial court improperly denies a party’s right to arbitrate, the court has abused
its discretion. In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010) (per curiam) (orig.
proceeding) Whether an arbitration agreement is valid is a legal question subject to de novo review.
J.M. Davidson, Inc., 128 S.W.3d 223, 227 (Tex. 2003). An appellate court may uphold the trial
court’s ruling on a motion to compel arbitration on any appropriate legal theory urged below. APC
Home Health Services, Inc. v. Martinez, 600 S.W.3d 381, 389 (Tex. App.—El Paso 2019, no pet.).
DISCUSSION
A. Authentication
Keele argues that, as a threshold matter, we may affirm the trial court’s denial of the
Premises Parties’ motion to compel arbitration because neither of the motion’s two exhibits were
authenticated. In support, Keele cites our opinion in United Rentals, Inc. v. Smith, which held,
“[s]imply attaching a document to a pleading neither makes the document admissible . . . dispenses
with proper foundational evidentiary requirements, [n]or relieves a litigant of complying with other
admissibility requirements.” 445 S.W.3d 808, 814 (Tex. App.—El Paso 2014, no pet.) (citing
Ceramic Tile Int’l, Inc. v. Balusek, 137 S.W.3d 722, 725 (Tex. App.—San Antonio 2004, no pet.);
see also Ridge Nat. Res., L.L.C. v. Double Eagle Royalty, L.P., 564 S.W.3d 105, 132 (Tex. App.—
El Paso 2018, no pet.) (“[A]rbitration cases . . . involve more than simply handing an arbitration
agreement to the trial court and asking for enforcement.”).
The Premises Parties argue that because no authentication defect was raised in the trial
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court, the issue was waived. While we agree Keele failed to raise the issue in the trial court, an
authentication defect is not always waivable. 4 But we need not decide whether any such defect
was waived or waivable, as Keele admitted she signed the documents in question. In her affidavit,
Keele acknowledges having signed the Arbitration Policy and SPD Acknowledgment, claiming
she “would not have signed” these documents “if it had been explained to [her] what arbitration
was.” Further, she stated she received no “advice from [her] lawyer at any point prior to signing
[the Arbitration Policy.]” (emphasis added). Similarly, in her response to the motion to compel,
Keele admitted the Arbitration Policy “contain[ed her] signature” and she was “required” to sign
both documents.
When a party admits to having signed a document, the party cannot then dispute the
document’s authenticity. 5 See Martinez v. Tuesday Morning, Inc., No. 05-96-00629-CV, 1997
WL 644866, at *2 (Tex. App.—Dallas Oct. 21, 1997, no pet.) (not designated for publication)
(“Martinez admitted . . . she had signed both the injury report and the unemployment records. By
identifying her signature on these documents, Martinez established the authenticity of the
documents.”); Bell v. Koch Foods of Miss., LLC, 358 Fed. Appx. 498, 501 (5th Cir. 2009) (per
curiam) (overruling challenge to arbitration agreements’ authenticity where party did not object in
trial court and never argued agreements had not been signed). Thus, Keele’s authentication
challenge fails.
B. Meeting of the minds
4
As we explained in Gunville v. Gonzales, “[c]omplete absence of authentication is a defect of substance, while an
attempted, but improper authentication is a defect of form.” 508 S.W.3d 547, 568 (Tex. App.—El Paso 2016, no pet.).
Thus, the latter is waivable, but the former can be raised for the first time on appeal. Hernandez v. Gallardo, 594
S.W.3d 341, 345 (Tex. App.—El Paso 2014, pet. denied).
5
Had Keele denied signing the documents, we might have reached a different result, as an alleged signature on a
document, without more, does not authenticate it. See United Rentals, Inc. v. Smith, 445 S.W.3d 814 (Tex. App.—El
Paso 2014, no pet.) (party’s signature on contract is strong evidence of assent, but if party denies having hand-signed,
evidence of signature’s authenticity is required).
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1. Face of the agreement
Keele argues that the Premises Parties “did not establish there was a meeting of the minds
as to the essential term of party identity.” More specifically, she contends “[t]he identity of the
contracting parties is a material term,” and “[i]f the identity of the contracting parties cannot be
determined from the face of the contract, the contract fails” (citing Range v. Calvary Christian
Fellowship, 530 S.W.3d 818, 830 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)). 6
The Premises Parties argue they could not find any authority holding that “for an arbitration
agreement to be enforceable the employee must subjectively understand the exact name of her
employer.” Nor could we. Further, Range did not hold that “if the identity of the contracting parties
cannot be determined from the face of the contract, the contract fails.” Instead, Range considered
matters outside a contract’s four corners in determining whether a party thereto was identifiable.
530 S.W.3d at 830 (considering separate lease in determining whether identity of buyer referred
to as “New Entity” in real estate sales contract could be determined). Thus, Keele’s argument
regarding the face of the agreement fails. 7
2. Keele’s pleading
Keele argues not only is it “impossible to tell from the face of the [Arbitration Policy] with
6
Keele similarly argued in the trial court that “[o]n its four corners, the ‘Arbitration Agreement’ does not state who
are the parties,” and “[t]he policy simply states the ‘facility’ but . . . fail[s] to sufficiently identify which party is
entering into the contract,” thus “there [wa]s not a ‘meeting of the minds.’”
7
Keele argues for the first time in her motion for rehearing that “[w]here a latent ambiguity emerges as to a crucial
term in a contract, intent to be bound becomes a question of fact,” citing Kelly v. Rio Grande Computerland Grp., 128
S.W.3d 759, 768–69 (Tex. App.—El Paso 2004, no pet.). But even assuming this argument was not waived by not
having been raised in the trial court or in Keele’s brief on appeal, see N&A Properties, Inc. v. PH Steel, Inc., 656
S.W.3d 556, 569 (Tex. App.—El Paso 2022, no pet.) (appellate argument must comport with trial court argument);
Wentworth v. Meyer, 839 S.W.2d 766, 778 (Tex. 1992) (Cornyn, J., concurring) (sole purpose of rehearing is to correct
errors on issues already presented on appeal), Keele fails to identify the ambiguity in question, explain why it is latent
rather than patent, identify the collateral matter that makes it apparent, or explain why the evidence presents a fact
issue. See Interest of A.N.G., 631 S.W.3d 471, 476–77 (Tex. App.—El Paso 2021, no pet.) (issue may be waived when
argument or analysis not provided). In any event, Keele is bound by her pleading, as discussed below.
9
whom Keele is purportedly bound to arbitrate,” but also “[n]o other competent evidence exists in
the record that would establish who was a party.”
The Premises Parties argue Keele’s pleading is the key to identifying the parties to the
arbitration agreement:
According to [Keele’s] pleadings, the injury she alleges she suffered while she was
an employee occurred at 1600 Murchison Dr.[,] El Paso, Texas, the location of
Mountain View. [Keele]’s pleadings also specifically allege that “Defendant
Mountain View” had a duty to provide a safe workplace to its employee. As such,
[Keele]’s . . . pleadings establish that she knew her employer was in fact Mountain
View and that she was entering into an agreement to arbitrate any workplace injury
with Mountain View. (record citations omitted). 8
In support of the proposition that pleadings are among the matters a trial court may consider
in deciding whether to compel arbitration, the Premises Parties cite Jack B. Anglin Co. Inc. v.
Tipps, 842 S.W.2d 266, 269 (Tex. 1992) and APC, 600 S.W.3d at 389.
We conclude Keele’s pleading establishes that each of the Premises Parties is entitled to
arbitration of Keele’s work-related claims against them. Keele pleaded that she slipped and fell
“as an employee” on premises “owned, operated and controlled by Defendants.” And while Keele
pleaded that Mountain View in particular “had a non-delegable duty to provide a safe workplace
to its employees,” she also pleaded that “Defendants” were negligent in “[f]ail[ing] to properly
train, educate, instruct, and supervise [her] in the performance of her duties”; “[f]ail[ing] to furnish
[her] with a safe place to work”; and “[f]ail[ing] to furnish [her] with adequate, necessary, and
suitable tools, appliances and equipment.” These allegations plainly identify the Premises Parties
8
The Premises Parties presumably focus on Mountain View here because Keele’s argument in the trial court—both
in her response to the motion to compel and at the hearing thereon—focused on showing that “the absence of Mountain
View[’s] name as a party on the alleged ‘Mutual Agreement to Arbitrate’ render[ed] it invalid” (response) and “on its
four corners, . . . [the arbitration agreement] does not show [Keele] entered into an arbitration policy with Mountain
View” (hearing).
10
as Keele’s employer, 9 and it is undisputed that Keele signed documents in which she agreed to
arbitrate work-related claims with her employer.
Beyond Tipps and APC, our conclusion is supported by caselaw holding that factual
statements in pleadings serve as judicial admissions, e.g., Lake Jackson Med. Spa, Ltd. v. Gaytan,
640 S.W.3d 830, 839 (Tex. 2022) (clear, deliberate, and unequivocal factual allegation in live
pleading not pleaded in alternative constitutes judicial admission that conclusively establishes fact
and bars pleader from disputing it). Our conclusion is also supported by the Texas Supreme Court’s
decision in In re Macy’s Tex., Inc., 291 S.W.3d 418 (Tex. 2009) (per curiam).
Here, like the defendant in Macy’s, the Premises Parties seek to compel arbitration under
documents Keele signed as an employee in which she agreed to arbitrate work-related claims with
an employer who is not specifically identified and instead referred to using only the undefined
terms “facility” and “company.” Cf. Macy’s, 291 S.W.3d at 419 (documents referred to employer
using only undefined terms “Company” and “your particular employer”). 10 And like the plaintiff’s
9
While Keele’s pleading uses the terms “defendant” and “defendants” irregularly, sometimes shifting from one to the
other within a single sentence, we see nothing to indicate an intent to allege that any of the Premises Parties acted or
failed to act other than as Keele’s employer.
10
Keele argues Macy’s is distinguishable because, inter alia, (1) the arbitration agreement there “identified specific
corporate entities by name,” and (2) “[the] defendant submitted affirmative evidence showing that it was the entity
identified in the agreement as ‘your specific employer’. . . . Specifically, Macy’s submitted an affidavit from a
corporate representative that ‘establishes that the Acknowledgment was signed ‘For the Company’ by an assistant
manager at the Macy’s store where [the plaintiff] worked.’” But while Keele is correct that the Macy’s arbitration
agreement “identified specific corporate entities by name”—namely, Federated Department Stores, Inc., Macy’s West,
Inc., and Federated Systems Group, Inc.—it failed to name the only one that mattered: the defendant, Macy’s Texas,
Inc. In re Macy’s Tex., Inc., 291 S.W.3d 419 (Tex. 2009) (per curiam). Likewise, the Macy’s affidavit named three
specific entities—Macy’s South, Macy’s West, and Macy’s Inc., f/k/a/ Federated Department Stores, Inc.—but again
not the defendant, Macy’s Texas, Inc. Id. And while the Court did note that the affidavit “establishe[d] that the
Acknowledgment was signed ‘For the Company’ by an assistant manager at the Macy’s store where [the plaintiff]
worked,” id. at 420, in so doing, the Court did not suggest that the affidavit established any link between “the
Company” and the defendant, Macy’s Texas, Inc. To the contrary, the Court’s only point was that the
Acknowledgment exceeded the requirements of the FAA. Id. at 419. Ultimately, the holding in Macy’s had nothing
to do with evidence of the employer’s identity and everything to do with the plaintiff’s pleading of the employer’s
identity: “As [the plaintiff] agreed to arbitrate with her employer and purported to sue her employer, she cannot avoid
arbitration by raising factual disputes about her employer’s correct legal name.” Id. at 420.
11
pleading in Macy’s, Keele’s pleading involves claims brought by an employee against an
employer, alleging that “[Keele] was on the premises owned, operated and controlled by
Defendants . . . as an employee when she [was injured]” (emphasis added), and that “Defendants”
were negligent in “[f]ail[ing] to furnish [her] with a safe place to work” and “[f]ail[ing] to furnish
[her] with adequate, necessary, and suitable tools, appliances and equipment.” Cf. id. at 420
(pleading alleged a “failure to provide proper equipment and a safe workplace—both nondelegable
duties owed by [an] employer”).
Macy’s held that because the plaintiff had “agreed to arbitrate with her employer and
purported to sue her employer, she [could not] avoid arbitration by raising factual disputes about
her employer’s correct legal name.” Id. Accordingly, Macy’s supports the conclusion that because
Keele agreed to arbitrate with her employer, then filed suit against the Premises Parties identifying
them as her employer, she cannot now avoid arbitration with these parties by raising factual
disputes about her employer’s correct name. Macy’s, 291 S.W.3d at 420; see also SSC Wimberley
Operating Co., LLC v. Goodman, 665 S.W.3d 729, 737 (Tex. App.—San Antonio 2023, no pet.)
(six defendants were entitled to compel arbitration under arbitration agreement between plaintiff
and unspecified employer, in part because plaintiff’s pleading identified all defendants as her
employer or an employee of her employer). 11
11
In her motion for rehearing, Keele argues we erred by engaging in “a pleadings analysis,” which she contends was
waived in the trial court and on appeal. But as explained above, in the trial court the Premises Parties based both their
motion to compel and hearing arguments largely on Keele’s pleading. Further, in their appellate brief, the Premises
Parties pointed to specific provisions in Keele’s pleading as well as relevant authorities, arguing: “As such, [Keele]’s
. . . pleadings establish that she knew her employer was in fact Mountain View and that she was entering into an
agreement to arbitrate any workplace injury with [it].” Keele further argues that “[b]ecause the [Premises] Parties did
not argue that In re Macy’s applied, the Court could not rely on that argument.” However, we are aware of no
prohibition against an appellate court considering relevant authorities, whether cited by the parties or not.
Keele further argues we have effectively overruled United Rentals, 445 S.W.3d at 808, which she contends “limit[ed]
the use of uncorroborated fragmentary arbitration agreements.” But United Rentals addressed only evidentiary issues
(i.e., unauthenticated agreement and incomplete recitation of agreement’s terms by witness), whereas here we address
12
We reject Keele’s other arguments for the reasons explained above in footnote three.
Appellants’ Issue One is sustained.
V. CONCLUSION
We reverse the trial court’s order denying the motion to compel arbitration and remand this
matter to the trial court to enter an order consistent with this opinion.
LISA J. SOTO, Justice
June 17, 2024
Before Alley, C.J., Palafox and Soto, JJ.
Alley, C J., concurring
Palafox, J., dissenting and would grant Motion for Rehearing
a pleading issue: whether Keele can, after agreeing to arbitrate with her employer, sue parties she herself identifies as
her employer, and then deny she has agreed to arbitrate with them. We see no conflict with United Rentals.
Keele additionally argues we have departed from our precedent in Golden Age Senior Living of El Paso, LLC v.
Atwood, 486 S.W.3d 44, 45–47 (Tex. App.—El Paso 2016, no pet.), which she contends “involve[ed] a similar latently
ambiguous agreement under similar circumstances.” But the arbitration agreement there, unlike here, named a specific
entity, 12 Oaks. And as we explained there: “In the arbitration agreement, 12 Oaks is identified as the ‘Company,’
and, by the terms of this plan, an ‘Employee’ is obligated to arbitrate his or her claims against the ‘Company.’” Id.Accordingly, we held that “the arbitration agreement clearly and unmistakably identifies 12 Oaks as the employer
with whom Atwood agreed to arbitrate his disputes.” Id. at 49. We see no departure from Golden Age in our opinion
here.
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