T&T Rock Distribution, LLC v. Rutilio I. Velasco

IN THE
TENTH COURT OF APPEALS
No. 10-16-00408-CV
T&T ROCK DISTRIBUTION, LLC,
Appellant
v.
RUTILIO I. VELASCO,
Appellee
From the 413th District Court
Johnson County, Texas
Trial Court No. DC- C201600551
MEMORANDUM OPINION
In eleven issues, appellant, T&T Rock Distribution, LLC, complains about the trial
court’s denial of its motion to compel arbitration and stay litigation proceedings. We
affirm.
I. BACKGROUND
In his original petition, appellee, Rutilio I. Velasco, alleged that he sustained life-
altering injuries as a result of an incident that occurred at “the Yard, which was owned,
possessed, managed, operated and/or controlled by one of more of the Defendants.” 1
Specifically, while working for appellant, Velasco was standing on the conveyor belt of a
Superior Telestacker machine while the machine was turned off, attempting to resolve an
issue with the machine. However, another worker turned the conveyor belt of the
machine on while Velasco was still standing on it or near it, which caused Velasco to be
thrown to the ground thirty feet below. As a result of the incident, Velasco asserted that
he sustained “multiple broken bones, punctured organs, and damage to his head, neck,
and face. Mr. Velasco’s diagnosis is still ongoing.” And because of these injuries, Velasco
asserted premises-liability and negligence claims against appellant.
Among other things, appellant filed an original answer denying the allegations
contained in Velasco’s original petition, as well as a motion to compel arbitration and
stay litigation proceedings. In its motion to compel arbitration, appellant contended that
Velasco signed an arbitration agreement, which waived his right to initiate or prosecute
a lawsuit and required the arbitration of claims, including tort claims and claims arising
from work-related injuries. Appellant also asserted that Velasco’s injuries were covered
under the arbitration agreement and that the Federal Arbitration Act applied in this case.
Attached to appellant’s motion to compel arbitration were copies of the arbitration
1 In addition to T&T Rock, KTI Incorporated, Johnson County Pipe, Inc., and Kenneth M.
Thompson, LLC were sued by Velasco. All of these parties filed a joint notice of appeal in this case;
however, KTI, Johnson County Pipe, and Kenneth M. Thompson LLC filed motions to dismiss their
appeals, which we have granted.
T&T Rock Distrib., LLC v. Velasco Page 2
agreement—one in English, which was not signed by Velasco, and what appellant refers
to as a Spanish version of the arbitration agreement that was signed by Velasco. Velasco
responded to appellant’s motion to compel arbitration arguing that “there is no
enforceable arbitration agreement in place,” among other things.
Ultimately, after a hearing, the trial court denied appellant’s motion to compel
arbitration and stay litigation proceedings. This accelerated, interlocutory appeal
followed. See TEX. R. APP. P. 28.1(a); TEX. CIV. PRAC. & REM. CODE ANN. § 51.016 (West
2015).
II. APPLICABLE LAW
“Generally, we review a trial court’s decision to grant or deny a motion to compel
arbitration under an abuse of discretion standard.” Enter. Field Servs., LLC v. TOC-Rocky
Mountain, Inc., 405 S.W.3d 767, 773 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).
Under this standard, we defer to a trial court’s factual determinations if they are
supported by evidence; however, we review a trial court’s legal determinations de novo.
In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). Whether a
valid arbitration agreement exists and whether the arbitration agreement is ambiguous
are questions of law that we review de novo. In re D. Wilson Constr. Co., 196 S.W.3d 774,
781 (Tex. 2006) (orig. proceeding).
A party seeking to compel arbitration must establish the existence of a valid,
enforceable arbitration agreement and that the claims at issue fall within that agreement’s
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scope. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding).
If the movant establishes that an arbitration agreement governs the dispute, the burden
shifts to the party opposing arbitration to establish a defense to the arbitration agreement.
In re Provine, 312 S.W.3d 824, 829 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding)
(citing In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999) (orig.
proceeding)). Once the movant established a valid arbitration agreement covering the
claims at issue, a trial court has no discretion to deny the motion to compel arbitration
unless the opposing party proves a defense to arbitration. Id. (citing In re FirstMerit Bank,
N.A., 52 S.W.3d 749, 753-54 (Tex. 2001) (orig. proceeding)).
Because state and federal policies favor arbitration, courts must resolve any doubts
about an arbitration agreement’s scope in favor of arbitration. In re FirstMerit Bank, N.A.,
52 S.W.3d at 753. To be subject to arbitration, the “allegations need only be factually
intertwined with arbitrable claims or otherwise touch upon the subject matter of the
agreement containing the arbitration provision.” In re B.P. Am. Prod. Co., 97 S.W.3d 366,
371 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding). However, no presumption
of arbitrability arises until the court has found there is an enforceable arbitration
agreement. In re Jebbia, 26 S.W.3d 753, 756-57 (Tex. App.—Houston [14th Dist.] 2000, orig.
proceeding).
T&T Rock Distrib., LLC v. Velasco Page 4
III. ANALYSIS
In its first ten issues, appellant makes numerous arguments to show that the trial
court abused its discretion by denying appellant’s motion to compel arbitration and stay
litigation proceedings. Among the arguments made by appellant on appeal are that a
valid arbitration agreement exists; that Velasco’s claims fit within the scope of the
agreement; that consideration exists to support the agreement; and that the Federal
Arbitration Act applies to this agreement. At the outset, we will address the argument
made by Velasco in the trial court and on appeal that appellants cannot rely on an
unsigned arbitration agreement.
Though public policy favors the arbitration of disputes, arbitration is also a
creature of contract. See In re Big 8 Food Stores, Ltd., 166 S.W.3d 869, 876 (Tex. App.—El
Paso 2005, orig. proceeding) (citing Am. Heritage Life Ins. Co. v. Lang, 321 F.3d 533, 537 (5th
Cir. 2003); Ysleta Indep. Sch. Dist. v. Godinez, 998 S.W.2d 700, 702 (Tex. App.—El Paso 1999,
no pet.)). As such, a party cannot be compelled to arbitrate a dispute unless he has agreed
to do so. Id. (citing Lang, 321 F.3d at 537). Furthermore, under standard contract
principles, the presence or absence of signatures on a written contract is relevant to
determining whether the contract is binding on the parties. Id. (citing In re Bunzi USA,
Inc., 155 S.W.3d 202, 209 (Tex. App.—El Paso 2004, orig. proceeding)).
Here, appellant asserts that Velasco signed what appellant contends is a Spanish
version of the arbitration agreement. It is undisputed that Velasco did not sign the
T&T Rock Distrib., LLC v. Velasco Page 5
English version. Nevertheless, appellant attached copies of both the English and Spanish
versions of the agreement to its motion to compel arbitration and relied on the English
version when making arguments to compel arbitration. At the hearing on the motion to
compel arbitration, appellant’s counsel noted: “The English version, if you read it, Your
Honor, even says in the severability clause, it says, ‘This Arbitration Agreement has been
translated into Spanish. In the event of conflict or apparent conflict between the Spanish
version and this version, this version will govern.’” Indeed, the English version of the
agreement does provide the aforementioned statements referenced by appellant’s
counsel. Additionally, when this dispute arose during the hearing, the trial court
mentioned: “I don’t have any reason to doubt that the English version is the same as the
Spanish version . . . .“
Nevertheless, on appeal, Velasco argues that appellant cannot rely on the English
version because it has not “been purported to be a translation of the Spanish document
that was presented in the trial court, much less a certified translation as required by the
Texas Rules of Civil Evidence . . . .” In making this argument, Velasco relies heavily on
Texas Rules of Evidence 902(3) and 1009. See TEX. R. EVID. 902(3), 1009.
We are not persuaded by Velasco’s reliance on Rule 902(3), as that rule pertains to
the self-authentication of a foreign public document, which is a “document that purports
to be signed or attested by a person who is authorized by a foreign country’s law to do
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so.” Id. at R. 902(3). The document at issue here is not of the type referenced by Rule
902(3).
On the other hand, Rule 1009 does address the type of document involved in this
case—the translation of a foreign-language document. See id. at R. 1009. Specifically,
with regard to the admissibility of a translation of a foreign-language document, a party
must, at least forty-five days before trial, serve on all parties: (1) “the translation and the
underlying foreign language document”; and (2) “a qualified translator’s affidavit or
unsworn declaration that sets forth the translator’s qualifications and certifies that the
translation is accurate.” The record does not reflect that appellant served on all parties,
at least forty-five days before trial, a translation and the underlying foreign-language
document, as well as a qualified translator’s affidavit or unsworn declaration. As such,
we cannot say that appellant satisfied the requirements of Rule 1009. See id. And because
appellant failed to satisfy the requirements of Rule 1009, we cannot say that the purported
English version of the arbitration agreement was properly before the trial court. See id.;
see also Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998) (noting that
a ruling on the admissibility of evidence will be affirmed on appeal if there is any
legitimate basis in the record to support it).
However, despite the foregoing, appellant complains that Velasco waived his
complaint about the usage of the English version of the arbitration agreement by
appellant as a translation of the Spanish agreement that Velasco purportedly signed.
T&T Rock Distrib., LLC v. Velasco Page 7
Rule 1009 specifically addresses objections to foreign-language documents. In particular,
Rule 1009(b) provides that: “When objecting to a translation’s accuracy, a party should
specifically indicate its inaccuracies and offer an accurate translation. A party must serve
the objection on all parties at least 15 days before trial.” Id. at R. 1009(b). Moreover, Rule
1009(c) states that:
If the underlying foreign language document is otherwise admissible, the
court must admit—and may not allow a party to attack the accuracy of—a
translation submitted under subdivision (a) unless the party:
(1) Submitted a conflicting translation under subdivision (a); or
(2) Objected to the translation under subdivision (b).
Id. at R. 1009(c). Implicit in subsections (b) and (c) of Rule 1009 is that the opposing party
provided the necessary documentation outlined in subsection (a). See id. at R. 1009.
As noted above, appellant did not comply with the requirements of Rule 1009 to
serve on all parties, at least forty-five days before trial, a translation and the underlying
foreign-language document, as well as a qualified translator’s affidavit or unsworn
declaration. And because appellant did not serve a proper translation of the purported
Spanish version of the signed arbitration agreement, there was nothing for Velasco to
object to under Rule 1009(b), though he objected to the admissibility of the relevant
documents anyway.2 See id. at R. 1009(b). Accordingly, we are not persuaded by
appellant’s waiver contention.
2 Velasco specifically objected that:
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Therefore, based on the foregoing, we conclude that the trial court did not abuse
its discretion by denying appellant’s motion to compel and stay litigation proceedings
because the effect of appellant’s failure to comply with Rule 1009 was that appellant failed
to establish the existence of a valid, enforceable arbitration agreement. See id.; see also In
re Kellogg Brown & Root, Inc., 166 S.W.3d at 737; Enter. Field Servs., LLC, 405 S.W.3d at 773;
In re Jebbia, 26 S.W.3d at 756-57. Accordingly, we overrule appellant’s first ten issues, as
they presuppose the existence of a valid, enforceable arbitration agreement. See TEX. R.
APP. P. 47.1.
Next, we address appellant’s eleventh issue, which asserts that the trial court
abused its discretion by denying appellant’s motion to compel arbitration and stay
litigation proceedings with prejudice. The entirety of appellant’s argument in this issue is
as follows:
The Order signed by the Trial Court denied Appellants’ Motion with
prejudice. Appellants argue there is no statute or caselaw that permits the
Trial Court to deny a Motion to Compel Arbitration with prejudice. The
FAA provides no legal basis and Appellants argue no caselaw permits this
as well. See 9 U.S.C. §§ 1-16. Appellants argue the Trial Court committed
error and abused its discretion by denying the Motion with prejudice.
Notwithstanding the fact that this issue is arguably inadequately briefed, see TEX. R. APP.
P. 38.1(i), the Fifth Circuit Court of Appeals has stated that: “If the trial court determines
And they haven’t proved that the Spanish version that they allege that my client signed,
which hasn’t been proven yet, is a legally sufficient translation into English and, therefore,
the English version—They need to bring someone to do that, Judge. It’s their burden of
proof with respect to that issue.
T&T Rock Distrib., LLC v. Velasco Page 9
that there is no contractual relationship between the parties requiring arbitration of a
dispute between them, or that no dispute between them falls within the scope of an
arbitration agreement by which they are mutually bound, the court must deny the motion
to compel arbitration with prejudice.” ASW Allstate Painting & Constr. Co. v. Lexington Ins.
Co., 188 F.3d 307, 311 (5th Cir. 1999) (emphasis added). In light of the foregoing, we
cannot say that the trial court abused its discretion by denying appellant’s motion to
compel and stay litigation proceedings with prejudice. We overrule appellant’s eleventh
issue.
IV. CONCLUSION
Having overruled all of appellant’s issues on appeal, we affirm the judgment of
the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed December 20, 2017
[CV06]
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