Service Corporation International, Gregory W. Spencer Funeral Directors, and Dignity Memorial Network, Inc. v. Tonyeka Williams-Birdow

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00213-CV
___________________________
SERVICE CORPORATION INTERNATIONAL, GREGORY W. SPENCER
FUNERAL DIRECTORS, AND DIGNITY MEMORIAL NETWORK, INC.,
Appellants
V.
TONYEKA WILLIAMS-BIRDOW, Appellee
On Appeal from the 342nd District Court
Tarrant County, Texas
Trial Court No. 342-320822-20
Before Birdwell, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Gregory W. Spencer Funeral Directors (Spencer)1 appeals from the
trial court’s order regarding its motion to compel arbitration of claims brought against
it by Appellee Tonyeka Williams-Birdow (Williams-Birdow). In three issues, Spencer
complains of the trial court’s (1) striking its amended motion to compel arbitration,
(2) striking its exhibit submitted as evidence in its brief and in support of its amended
motion, and (3) denying its motion to compel arbitration; and in its fourth issue,
Spencer argues that we should consider de novo whether the arbitration agreement is
enforceable. Holding that the trial court abused its discretion by striking the amended
motion and exhibit but overruling the challenge to the denial of the original motion to
compel arbitration, we will reverse and remand for proceedings consistent with this
opinion.
II. BACKGROUND
This case arises out of the death of Williams-Birdow’s husband, Albert Birdow,
Jr. (Birdow), who passed away on November 1, 2018. According to Spencer, the day
1
Only Spencer has filed a notice of appeal, although the pleadings and the
briefs also refer to Service Corporation International (SCI) and Dignity Memorial
Network, Inc. (Dignity) as appellants. In her pleadings, Williams-Birdow alleged that
Spencer is owned by Dignity, which is in turn owned by SCI. Although these entities
were defendants below, Spencer’s answer contended that they were not “the proper
defendant[s] in this matter.” The subject ruling concerns the denial of a motion to
compel arbitration filed only by Spencer. For all of these reasons, we consider
Spencer as the only appellant.
2
that Birdow died, Williams-Birdow contacted it and requested that Birdow’s body be
removed from her home. On the same day, the body was removed and taken to
Spencer’s facility. The following day, Williams-Birdow viewed Birdow’s body at the
facility and signed an “Identification Acknowledgement” and an “Authorization to
Embalm at Funeral Establishment or Other Location.”
As alleged in the pleadings, Williams-Birdow requested that she see the body in
private before any services because she was not home the day Birdow died. When
Williams-Birdow arrived at the funeral home, “there was a strong smell.” When she
got to the back of the funeral home, “Birdow’s body was completely unrecognizable”
and “[h]is body was bloated and distorted because he was left in an open room and
not refrigerated.”
The following day, the body was moved to a mortuary service and then to the
Tarrant County Medical Examiner’s office for autopsy. On November 8, after
completion of the autopsy, the body was transported back to the mortuary service.
According to Williams-Birdow’s pleadings, none of these transports were discussed
with or approved by her. However, she did sign an “Authorization for Cremation
and Disposition” on the same day, allowing the transfer of the cremated remains from
the mortuary service back to Spencer. According to Williams-Birdow, she “was
forced to cremate her husband because the condition of his body could not be
repaired enough to have his body inside of the church or to have an open casket.”
3
On November 9, Williams-Birdow signed a document entitled “Statement of
Funeral Goods and Services Selected/Purchase Agreement” (Contract), which
contained the following paragraph:
BY SIGNING THIS AGREEMENT, YOU ARE AGREEING
THAT ANY CLAIM YOU MAY HAVE AGAINST THE
SELLER SHALL BE RESOLVED BY ARBITRATION AND
YOU ARE GIVING UP YOUR RIGHT TO A COURT OR JURY
TRIAL AS WELL AS YOUR RIGHT OF APPEAL.
The document was also signed by Andrea Q Franklin on behalf of “Seller,” who was
identified as Spencer.
Williams-Birdow ultimately filed suit against Spencer, alleging causes of action
for negligence, gross negligence, negligence per se, fraud and forgery, intentional
infliction of emotional distress, negligent infliction of emotional distress, breach of
contract, and breach of the Texas Deceptive Trade Practices Act. Among her claims,
she alleged that Spencer owed her “a duty to properly care for her husband’s remains”
and that it had “left [Birdow’s body] unrefrigerated which caused him to decompose
at an accelerated rate,” which in turn caused her to suffer “insurmountable damages
because she had to see her husband’s body in its bloated state, [and] she was left with
no option but to have her husband cremated.”
Spencer answered and later filed its “Defendant’s Motion to Compel
Arbitration and Abate Suit” (Motion). Attached to the Motion were (1) the Contract,
which importantly consisted of only two pages; (2) “Plaintiff’s Third Amended
Petition”; (3) the “Identification Acknowledgement”; (4) the “Authorization to
4
Embalm at Funeral Establishment or Other Location”; (5) the “Authorization for
Cremation and Disposition”; and (6) a release that was signed by Williams-Birdow on
November 10, 2018. The Motion was set for hearing on March 31, 2022.
Prior to the hearing, Williams-Birdow filed a response to the Motion, alleging
that the arbitration agreement in the Contract was unenforceable because (1) “it does
not meet the interstate commerce requirement under the Federal Arbitration Act or
requirements under the Texas Arbitration Act,” (2) “it is not a valid contract due to
unconscionability,” (3) “it is vague,” and (4) Spencer “has substantially invoked the
judicial process to [Williams-Birdow’s] detriment and thus waived the right to compel
arbitration.” Spencer filed a reply to the response which attached March 2022
affidavits of Warren A. “Tony” Lynch and Tomekco Webster as well as an email from
Williams-Birdow’s attorney. The affidavit of Lynch—an employee of SCI—explained
the business operations of Spencer, including the names of companies referenced in
the Contract and other documents signed by Williams-Birdow. The affidavit of
Webster—also identified as an employee of SCI—provided details of the execution of
the Contract by Williams-Birdow and Spencer and stated that the Contract was signed
by all parties at Spencer’s offices rather than “in the limo on the way to [Birdow’s]
funeral” as alleged by Williams-Birdow’s attorney in an email.
At the March 31 hearing on the Motion, the trial court raised questions
regarding whether part of the Contract was missing and whether the arbitration clause
was too vague to be enforceable. Williams-Birdow’s attorney argued that there were
5
“terms and conditions on the backside” of the Contract that were omitted and “could
limit the terms of enforcement or could waive arbitration.” Indeed, directly above the
arbitration clause in the two-page Contract, were the following words: “SEE
OTHER SIDE FOR TERMS AND CONDITIONS THAT ARE PART OF
THIS AGREEMENT.” In response to this argument, the trial court stated, “Y’all
need to provide briefing on this issue.” The trial court continued, “My concern is that
if there were no terms and conditions that were attached to this, you’re saying that
you don’t even know if they existed, and then this is so vague, I want something
saying that it can be that vague and still be enforceable.” The trial court added, “I
mean, I understand they didn’t provide the terms and conditions, so if you want to
talk about that. This is too vague.” Williams-Birdow’s attorney also pointed out that
Spencer’s “head honcho” was deposed the previous day and stated “that this contract
that they’re trying to enforce was rescinded and there was a new contract.” While
Spencer’s attorney disputed this account of the deposition, the trial court reserved its
ruling and gave the parties “two weeks to get the deposition transcribed and get me
something showing that she said that it was rescinded and that there is no contract
currently” and “if you want to provide some kind of briefing on the issue of
vagueness on the arbitration clause, then I’ll look at that.” The trial court ultimately
set April 15 as the deadline to provide briefing and stated that the new hearing would
be by submission after the deadline.
6
On April 12, Spencer filed its “Defendant’s Amended Motion to Compel
Arbitration and Abate Suit” (Amended Motion) as well as its “Brief on Vagueness and
Ambiguity in Support of Defendant’s Amended Motion to Compel Arbitration and
Abate Suit” (Brief on Vagueness and Ambiguity). Attached to the Amended Motion
were several documents. First, the Contract was again attached, but this time it
consisted of four pages, including the “Terms and Conditions” referenced at the
March 31 hearing. An additional arbitration clause was contained on page three of
the Contract. It provided:
ARBITRATION: YOU AGREE THAT ANY CLAIM YOU MAY
HAVE RELATING TO THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT (INCLUDING
ANY CLAIM OR CONTROVERSY REGARDING THE
INTERPRETATION OF THIS ARBITRATION CLAUSE)
SHALL BE SUBMITTED TO AND FINALLY RESOLVED BY
MANDATORY AND BINDING ARBITRATION IN
ACCORDANCE WITH THE APPLICABLE RULES OF THE
AMERICAN ARBITRATION ASSOCIATION (“AAA”);
PROVIDED, HOWEVER, THAT THE FOREGOING
REFERENCE TO THE AAA RULES SHALL NOT BE
DEEMED TO REQUIRE ANY FILING WITH THAT
ORGANIZATION, NOR ANY DIRECT INVOLVEMENT OF
THAT ORGANIZATION. THE ARBITRATOR SHALL BE
SELECTED BY MUTUAL AGREEMENT OF THE PARTIES.
IF THE PARTIES FAIL TO OR ARE UNABLE TO AGREE ON
THE SELECTION OF AN APPROPRIATE ARBITRATOR,
THE AAA SHALL SELECT THE ARBITRATOR PURSUANT
TO ITS RULES AND PROCEDURES UPON THE
APPLICATION OF ONE OR BOTH PARTIES. THIS
AGREEMENT TO ARBITRATE ALSO APPLIES TO ANY
CLAIM OR DISPUTE BETWEEN OR AMONG THE SELLER,
YOU AS THE PURCHASER, ANY PERSON WHO CLAIMS TO
BE A THIRD PARTY BENEFICIARY OF THIS
AGREEMENT, ANY OF THE SELLER’S EMPLOYEES OR
7
AGENTS, ANY OF THE SELLER’S PARENT, SUBSIDIARY,
OR AFFILIATE CORPORATIONS, AND ANY OF THE
EMPLOYEES OR AGENTS OF THOSE PARENT,
SUBSIDIARY, OR AFFILIATE CORPORATIONS, EXCEPT AS
MAY BE REQUIRED BY LAW. NEITHER PARTY NOR AN
ARBITRATOR MAY DISCLOSE THE EXISTENCE,
CONTENT, OR RESULTS OF ANY ARBITRATION
HEREUNDER WITHOUT THE PRIOR WRITTEN
CONSENT OF BOTH PARTIES.
Further terms of the arbitration agreement were found on page four of the Contract:
ARBITRATION: You agree that any dispute, controversy or claim
arising out of or relating to this Agreement shall be submitted to and
finally resolved by mandatory and binding arbitration in accordance with
the rules of the American Arbitration Association. The arbitration shall
be conducted by one arbitrator selected by mutual agreement of the
parties and shall occur in the city or county in which this Agreement was
executed. The prevailing party in any such arbitration shall be entitled to
recover its reasonable costs and attorneys fees as part of any award
entered therein, and judgment may be entered upon any arbitration
award in any court having jurisdiction.
The “Terms and Conditions” also included the following paragraph:
ENTIRE AGREEMENT: This Agreement contains all terms which
have been agreed upon by us and you relating to the goods and services
listed on the Statement of Funeral Goods and Services
Selected/Purchase Agreement. This Agreement replaces all other
discussions and agreements, whether oral or written, relating to those
goods and services. No subsequent discussion or agreement can change
the terms of this Agreement unless it is written and is signed by both us
and you.
Several additional exhibits were attached to the Amended Motion, including
“Plaintiff’s Third Amended Petition,” April 2022 affidavits of Lynch and Franklin, the
“Authorization to Embalm at Funeral Establishment or Other Location,” the
“Authorization for Cremation and Disposition,” and a release. The affidavit of Lynch
8
clarified that the Contract consisted of four pages and again explained the business
operations of Spencer, including the names of companies referenced in the Contract
and other documents signed by Williams-Birdow. The affidavit of Franklin—
identified as Spencer’s “embalmer and funeral director”—set out details of the
execution of the various documents by Williams-Birdow.
On April 18,2 Williams-Birdow filed her “Plaintiff’s Brief on Vagueness in
Support of Plaintiff’s Response to Defendant’s Motion to Compel Arbitration and
Abate Suit, Plaintiff’s Objections to Defendant’s Brief Evidence, and Plaintiff’s
Motion to Strike Defendant’s First Amended Motion to Compel Arbitration and
Abate Suit.” In the brief, Williams-Birdow argued that the two-page Contract in
Spencer’s Motion was “too vague to be enforceable” because it provides “no guidance
on which arbitration forum to utilize, which set of arbitration rules that would govern
the proceeding, the number of arbitrators, whether or not the arbitration is binding,
etc.” In addition, she contended that the Contract was “unilaterally renegotiated and
rescinded in favor o[f] a new contract that only covered goods/merchandise and not
goods plus services.” Williams-Birdow moved the trial court to strike Spencer’s
Amended Motion “because the deadline for amendments or responses to that motion
has passed and [Spencer’s] amendment was not timely.” Williams-Birdow also
objected to “Exhibit 1” (the four-page Contract) to Spencer’s brief because it was not
2
Although the trial court set April 15 as the deadline to file briefs, no party has
raised a timeliness issue regarding Williams-Birdow’s brief.
9
a true and correct copy of the contract; there is no business records affidavit to
authenticate it; “there are severe irregularities on the pages that make it apparent that
pages 3 and 4 are not part of the same document as pages 1 and 2”; and Webster’s
deposition testimony “directly contradicts the statements in her affidavit” and
“therefore negates any authentication” of the exhibit. In support of her arguments,
Williams-Birdow attached portions of the depositions of Webster and Lorna Downs,
another employee of Spencer.
On April 19, a notice of hearing on the Amended Motion was filed, setting the
hearing for May 27. On May 5, an amended notice of hearing was filed, changing the
hearing date to June 16. Before a hearing was held on the Amended Motion, the trial
court signed an order3 on May 18 (1) denying Spencer’s Motion, (2) striking Spencer’s
Amended Motion, and (3) striking Exhibit 1 (the Contract consisting of four pages) to
Spencer’s Brief on Vagueness and Ambiguity. Spencer appealed from this order.
Spencer requested findings of fact and conclusions of law and gave notice of past due
findings of fact and conclusions of law, but none were filed.
III. DISCUSSION
On appeal, Spencer challenges the trial court’s order (1) striking its Amended
Motion, (2) striking its Exhibit 1—the four-page Contract—submitted as evidence in
its Brief on Vagueness and Ambiguity, and (3) denying its Motion. In what is labeled
3
In its brief, Spencer states that the motion to strike was never set for hearing
and the trial court’s ruling was “without prior notice to the parties.”
10
as its fourth issue, Spencer contends that we should consider de novo whether the
arbitration agreement is enforceable.
A. Striking the Amended Motion and Evidence
With regard to the first two issues, Spencer contends that by striking the
Amended Motion and evidence, the trial court “denied [Spencer] the opportunity to
establish the existence of a valid arbitration agreement” and abused its discretion “by
ignoring applicable contract interpretation principles.” Williams-Birdow responds
that the trial court did not err by striking the Amended Motion because it violated
Texas Rule of Civil Procedure 63, which limits the ability to amend pleadings within
seven days of trial. With regard to the four-page Contract, Williams-Birdow contends
that it was not authenticated and that pages three and four were not part of the
agreement.
1. Standard of Review for Striking the Motion and Evidence
We review a trial court’s ruling on a motion to strike4 amended pleadings for an
abuse of discretion. Strange v. HRsmart, 400 S.W.3d 125, 131 (Tex. App.—Dallas
2013, no pet.); see Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657
(Tex. 1990) (op. on reh’g) (motion to strike petition in intervention); Wells v. Best Ins.
4
We note that there is no rule specifically authorizing a motion to strike a
motion to compel arbitration. See Rodriguez v. U.S. Sec. Assocs., Inc., 162 S.W.3d 868,
873 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (stating that a motion to strike
used to dismiss claims is an “unauthorized procedural vehicle”); see also O’Carolan v.
Hopper, 414 S.W.3d 288, 297 (Tex. App.—Austin 2013, no pet.) (“Although the rules
of civil procedure do not provide for a motion to strike pleadings (except in a motion
for sanctions) . . . .”).
11
Servs., Inc., No. 13-09-00236-CV, 2010 WL 4264792, at *2 (Tex. App.—Corpus
Christi–Edinburg, Oct. 28, 2010, no pet.) (mem. op.) (motion to strike deemed
admissions).
A trial court’s rulings admitting or excluding evidence are also reviewable for an
abuse of discretion. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex.
2015). An appellate court must uphold the trial court’s evidentiary ruling if there is
any legitimate basis in the record for the ruling. Owens-Corning Fiberglas Corp. v. Malone,
972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion if the court acts
without reference to any guiding rules or principles, that is, if the act is arbitrary or
unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
2. Applicable Law Regarding the Motion
Section 171.021 of the Texas Civil Practice and Remedies Code governs
proceedings to compel arbitration. Tex. Civ. Prac. & Rem. Code Ann. § 171.021. If a
party opposing a motion to compel denies the existence of the arbitration agreement,
the trial court must “summarily determine that issue” and order arbitration if it finds
such an agreement exists. Id. § 171.021(b). Whether or not an evidentiary hearing is
held depends on the circumstances. In re MP Ventures of S. Tx., Ltd., 276 S.W.3d 524,
528 n.4 (Tex. App.—San Antonio 2008, orig. proceeding). If material facts are
uncontroverted, the trial court may decide whether to compel arbitration based on the
affidavits, pleadings, discovery, and stipulations. Id. (citing Jack B. Anglin Co. v. Tipps,
12
842 S.W.2d 266, 269 (Tex. 1992)). The trial court is only required to hold a hearing to
resolve disputed facts. Id.Where a hearing is necessary, the Texas Rules of Civil Procedure provide that a
motion and notice of a hearing “must be served upon all other parties not less than
three days before the time specified for the hearing, unless otherwise provided by
these rules or shortened by the court.” Tex. R. Civ. P. 21(b). A trial court is required
to consider and rule upon a motion within a reasonable time. Safety-Kleen Corp. v.
Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig. proceeding). When
a motion is properly filed and pending before a trial court, the act of giving
consideration to and ruling upon that motion is a ministerial act. Id. While an
appellate court may not tell a trial court how to rule, mandamus may issue to compel a
trial court to act on a properly filed and pending motion. In re Blakeney, 254 S.W.3d
659, 661 (Tex. App.—Texarkana 2008, orig. proceeding).
3. Analysis
Here, Spencer filed its Amended Motion after concerns regarding vagueness
and rescission were raised at the hearing on the Motion. The reasons cited by
Williams-Birdow in support of her motion to strike the Amended Motion were that
“the deadline for amendments or responses to that motion ha[d] passed and
[Spencer’s] amendment was not timely” and that leave to amend the Motion was
neither requested nor granted. Williams-Birdow cited no authority in support of her
motion to strike. The record does not reflect that a hearing was set on the motion to
13
strike, but a hearing was set on the Amended Motion. However, the trial court struck
the Amended Motion as well as the four-page Contract attached to Spencer’s brief
before any hearing was held.
On appeal, Williams-Birdow expands her argument supporting her motion to
strike to state that a motion to compel arbitration filed pursuant to Texas Civil
Practice & Remedies Code Section 171.023(b) cannot be amended except as allowed
by Texas Rule of Civil Procedure 63. And because the Amended Motion was filed
without leave of court and less than seven days from the two-week due date set by the
trial court, the Amended Motion and additional evidence “were a complete surprise”
to her. She concludes that “[t]his conduct is expressly prohibited by Texas Rule of
Civil Procedure 63,” and therefore, the trial court did not abuse its discretion in
striking the Amended Motion.
But Williams-Birdow’s argument misconstrues the nature of the Amended
Motion filed by Spencer. The Amended Motion was a new motion with new
evidence and arguments which was set for a new hearing. See Tex. R. Civ. P. 65
(“Unless the substituted instrument shall be set aside on exceptions, the instrument
for which it is substituted shall no longer be regarded as a part of the pleading in the
record of the cause . . . .”); see also FKM P’ship, Ltd. v. Bd. of Regents of the Univ. of Hous.
Sys., 255 S.W.3d 619, 633 (Tex. 2008) (“Our rules provide that amended pleadings and
their contents take the place of prior pleadings.”). It was neither a disguised motion
for rehearing nor a supplement to the original Motion. See 21st Mortg. Corp. v. Moore,
14
No. 11-17-00167-CV, 2019 WL 150953, at *2 (Tex. App.—Eastland Jan. 10, 2019, no
pet.) (mem. op.) (“Because the second motion to compel arbitration arose from a
different arbitration agreement and it involved a new argument, it constituted a
distinct motion to compel arbitration rather than a motion to reconsider the previous
motion to compel arbitration.”). As evidenced by the record in this case, a new
hearing was set more than thirty days from the filing of the Amended Motion and
well before the pending trial date.
The crux of Williams-Birdow’s argument is that a summary-judgment
proceeding is a “trial” within the meaning of Rule 63; under Section 171.023(b), a
hearing on a motion to compel arbitration is a trial; and therefore, application of
Rule 63 supports striking the Amended Motion and evidence. Williams-Birdow relies
on the language in Section 171.023(b) which provides that “[i]f there is a substantial
bona fide dispute as to whether an agreement to arbitrate exists, the court shall try the
issue promptly and summarily,” as well as Texas Rule of Civil Procedure 63, which
provides:
Parties may amend their pleadings, respond to pleadings on file of other
parties, file suggestions of death and make representative parties, and file
such other pleas as they may desire by filing such pleas with the clerk at
such time as not to operate as a surprise to the opposite party; provided,
that any pleadings, responses or pleas offered for filing within seven days
of the date of trial or thereafter, or after such time as may be ordered by
the judge under rule 166, shall be filed only after leave of the judge is
obtained, which leave shall be granted by the judge unless there is a
showing that such filing will operate as a surprise to the opposite party.
15
Tex. R. Civ. P. 63.5 However, neither of these rules support striking the Amended
Motion.
Williams-Birdow contends that just as a summary-judgment proceeding is a
trial within the meaning of Rule 63, Goswami v. Metro. Sa. & Loan Ass’n, 751 S.W.2d
487, 490 (Tex. 1988), a hearing on a motion to compel arbitration equates to a trial.
But a hearing on a motion to compel arbitration is neither a trial nor a summary-
judgment proceeding. Rather, it has been described as a “pretrial matter” and a
“summary proceeding.” See In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex.
2005) (orig. proceeding) (stating that Texas procedural rules call for determination of
arbitrability by “summary proceedings”); Wright v. Hernandez, 469 S.W.3d 744, 753
(Tex. App.—El Paso 2015, no pet.) (“[A] proceeding on a motion to compel
arbitration is a pretrial matter, and [ ] the civil rules governing jury trials are
inapplicable.”); see also Coyle v. Coyle Fam. Farm, Inc., No. 04-18-00457-CV, 2019 WL
2110692, at *2 (Tex. App.—San Antonio May 15, 2019, no pet.) (mem. op.) (holding
that a motion to compel arbitration does not require twenty-one days’ notice of the
hearing because it “is not the equivalent of a summary judgment motion but is simply
a pre-trial motion”). Accordingly, Rule 63’s prohibition of certain amendments
without leave of court does not apply.
5
At the time of the hearing on the Motion, trial was set for July 11, 2022.
According to Spencer, there were no other orders in the case under Texas Rule of
Civil Procedure 166.
16
Moreover, even if a motion to compel arbitration could be equated to a motion
for summary judgment, an amended or new motion for summary judgment can be
filed after a previous motion for summary judgment is denied. See Rentfro v. Cavazos,
No. 04-10-00617-CV, 2012 WL 566364, at *14 (Tex. App.—San Antonio Feb. 12,
2012, pet. denied) (mem. op.) (“It is certainly possible that a summary judgment
movant might not have sufficient evidence to establish an affirmative defense as a
matter of law when the motion for summary judgment is first filed, but this does not
mean that prior to the entry of any final judgment such evidence might not become
available, allowing the movant to amend, refile, or reurge the motion for summary
judgment based on additional evidence.”). And if the trial court denies a summary
judgment, it has authority to later reconsider and grant a motion for summary
judgment or change or modify the original order. See Ravkind v. Mortg. Funding Corp.,
881 S.W.2d 203, 205 (Tex. App.—Houston [1st Dist.] 1994, no writ); Bennett v. State
Nat’l Bank, 623 S.W.2d 719, 721 (Tex. App.—Houston [1st Dist.] 1981, writ ref’d
n.r.e.); R.I.O. Sys. v. Union Carbide, 780 S.W.2d 489, 492 (Tex. App.—Corpus Christi
1989, writ denied).
Because the trial court should have considered the Amended Motion even if
the original Motion was denied, we next address whether striking the Amended
Motion was an abuse of the trial court’s discretion. In an analogous situation, a sister
court held that it was. In Lucchese Boot Co. v. Licon, 388 S.W.3d 365 (Tex. App.—El
Paso 2012, no pet.), the appellant argued that the trial court had abused its discretion
17
by striking its amended motion to compel arbitration and by refusing to compel
arbitration. Id. at 372. In making its decision, the court first looked at different
authorities allowing pleadings to be stricken. Id.Under the Rules of Civil Procedure, courts are authorized to strike a
party’s pleadings in a limited variety of situations. For example, a court
is required to strike a party’s pleadings under Tex. R. Civ. P. 12 if an
attorney fails to show sufficient authority to prosecute or defend a suit
on behalf of a party and no party who is authorized to prosecute or
defend appears. A court may strike a groundless and false pleading.
Tex. R. Civ. P. 13. A court is also authorized to strike a third party
claim. Tex. R. Civ. P. 38(a). A plea in intervention is subject to being
stricken by the court for sufficient cause on the motion of any party.
Tex. R. Civ. P. 60. As another example, a court may strike a pleading
filed after a deadline imposed by a pre-trial order. See Tex. R. Civ. P.
166(p). The Rules of Civil Procedure also authorize trial courts to
sanction a party for failure to comply with a discovery request by striking
pleadings or by entering an order refusing to allow the disobedient party
from supporting designated claims or defenses, or prohibiting him from
introducing designated matters in evidence. Tex. R. Civ. P. 215.2(b)(5).
Id. The court noted that the party opposing arbitration had urged the trial court to
strike the amended motion to compel arbitration and refuse to consider evidence
attached to the motion based on (1) waiver of the right to assert the new grounds
alleged in the amended motion, (2) failure to exercise due diligence in presenting new
arguments and evidence, and (3) estoppel from reopening the arbitration issue. Id. at
372–73. Notably, the party opposing arbitration urged that, pursuant to Texas Rule
of Civil Procedure 270 (which provides in part “that in a jury case no evidence on a
controversial matter shall be received after the verdict of the jury”), the arbitration
movant “could not ‘reopen’ the arbitration issue and introduce new evidence.” Id.18
at 374. Rejecting all of these arguments and specifically finding that Rule 270 was
inapplicable to a motion to compel arbitration, the El Paso court concluded that the
trial court abused its discretion by granting the motion to strike. Id. at 376; see
Lucchese, Inc. v. Solano, 388 S.W.3d 343, 354 (Tex. App.—El Paso 2012, no pet.) (same);
Lucchese, Inc. v. Rodriguez, 388 S.W.3d 354, 365 (Tex. App.—El Paso 2012, no pet.)
(same).
Similarly, here, none of the arguments made by Williams-Birdow support the
trial court’s order striking the Amended Motion. Accordingly, we conclude that the
trial court abused its discretion by granting the motion to strike and not considering
the Amended Motion. See Approximately $1,589.00 v. State, 230 S.W.3d 871, 875 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (holding that trial court erred by refusing
to hear motion to strike deemed admissions). We sustain Spencer’s first issue.
With regard to the struck evidence, Williams-Birdow relies on Texas Rule of
Evidence 803(6) and 902(10) to support her argument that the trial court did not
abuse its discretion because Spencer “simply attached” the Contract to its brief and
“wholly failed to include any sort of business records affidavit to self-authenticate
their alleged complete arbitration agreement.” Spencer responds that this argument is
“contrary to the record and to controlling law” and is not properly raised on appeal
due to Williams-Birdow’s failure to obtain rulings on her objections. We agree.
First, Williams-Birdow misstates the evidence. In both its original Motion and
the Amended Motion, Spencer provided affidavit testimony of Lynch to prove up the
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Contract. Lynch attested to his “personal knowledge of the goods and services that
funeral homes owned by SCI, including [Spencer], offer and sell” and his personal
knowledge of how the contracts “extended and executed” by Spencer operate. He
attached a copy of the Contract to both affidavits. In his second affidavit, he added,
Pages 3 and 4 of the Contract are labeled “Terms and Conditions.”
These pages 3 and 4 to the Contract were and are standard for every
agreement on Form FUN0099 REV (01/07) that SCI funeral homes,
including [Spencer], provided and provide to customers. Pages 3 and 4
were part of the agreement executed by [Williams-Birdow]. In 2018, at
the time of the execution of the Contract, pages 3 and 4 would have
been provided to every customer entering a Statement of Funeral Goods
and Services Selected/Purchase Agreement, just like the Contract with
[Williams-Birdow].
See In re Estate of Guerrero, 465 S.W.3d 693, 703–04 (Tex. App.—Houston [14th Dist.]
2015, pet. denied) (stating that evidentiary standards for a motion to compel
arbitration are the same as for a motion for summary judgment and that a “properly
sworn affidavit stating that the attached documents are true and correct copies of the
original authenticates the copies so they may be considered as summary judgment
evidence”); Rockwall Commons Assocs., Ltd. v. MRC Mortg. Grantor Tr. I, 331 S.W.3d 500,
511 (Tex. App.—El Paso 2010, no pet.) (“The construction loan, mortgage note, and
guaranty agreement were admissible because, as contracts, they have legal effect
independent of the truth of any statements contained therein and are not hearsay.”);
Ltd. Logistics Servs., Inc. v. Villegas, 268 S.W.3d 141, 146 (Tex. App.—Corpus Christi–
Edinburg 2008, no pet.) (“Moreover, a party to a contract will not normally prevail on
a hearsay objection to a contract because a signed instrument, such as a contract, that
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creates legal rights is not hearsay because it has the legal effect independent of the
truth of any statement contained in it.”).
By striking the Contract, the trial court never ruled on Williams-Birdow’s
objections. As a result, they are waived and may not be urged on appeal. Nationwide
Coin & Bullion Rsrv., Inc. v. Thomas, 625 S.W.3d 498, 504 (Tex. App.—Houston [14th
Dist.] 2020, pet. denied). We sustain Spencer’s second issue.
B. Denying the Motion to Compel Arbitration
In its third issue, Spencer argues that the trial court erred by denying its Motion
“because the record shows that, as a matter of law, Williams[-Birdow] and Spencer
were parties to an agreement containing a valid arbitration clause; this suit is within
the scope of the arbitration clause; and no valid defense to arbitration was provided
by Williams[-Birdow].” Therefore, according to Spencer’s fourth issue, we “should
determine de novo that the arbitration agreement is enforceable and compel
arbitration.”
1. Standard of Review for a Motion to Compel Arbitration
We review a trial court’s order denying a motion to compel arbitration for
abuse of discretion. Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018), cert.
denied, 139 S. Ct. 184 (2018); In re Labatt Food Serv., L.P., 279 S.W.3d 640, 642–43 (Tex.
2009) (orig. proceeding). We defer to the trial court’s factual determinations if they
are supported by evidence but review its legal determinations de novo. Id. A trial
court abuses its discretion if it acts in an arbitrary or unreasonable manner or acts
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without reference to any guiding rules or principles. In re Copart, 619 S.W.3d 710, 713
(Tex. 2021) (orig. proceeding); Downer, 701 S.W.2d at 241–42. A trial court has no
discretion in determining what the law is or in applying the law to the facts. In re
Allstate Indem. Co., 622 S.W.3d 870, 875–76 (Tex. 2021) (orig. proceeding). Where, as
here, the trial court did not issue findings of fact or conclusions of law to explain its
denial of a motion to compel arbitration, we must uphold the trial court’s decision on
any appropriate legal theory urged below. Bonded Builders Home Warranty Ass’n of Tex.
v. Rockoff, 509 S.W.3d 523, 531–32 (Tex. App.—El Paso 2016, no pet.).
2. Applicable Law for Compelling Arbitration
“A party seeking to compel arbitration must establish the existence of a valid
arbitration agreement and that the claims at issue fall within the scope of that
agreement.” Henry, 551 S.W.3d at 115 (citing Venture Cotton Coop. v. Freeman,
435 S.W.3d 222, 227 (Tex. 2014)). We determine whether a claim falls within the
scope of an arbitration agreement by examining the facts alleged in the plaintiff’s
petition and the terms of the arbitration agreement. Amateur Athletic Union of the U.S.,
Inc. v. Bray, 499 S.W.3d 96, 102 (Tex. App.—San Antonio 2016, no pet.) (citing In re
Rubiola, 334 S.W.3d 220, 225 (Tex. 2011) (orig. proceeding)). If the party seeking to
compel arbitration meets this burden, the burden then shifts, and to avoid arbitration,
the party opposing it must prove an affirmative defense to the provision’s
enforcement. Id.22
3. Analysis
After Spencer filed its Motion, Williams-Birdow filed a response raising
multiple challenges to the arbitration agreement, including that it did not meet certain
requirements under the Federal Arbitration Act or the Texas Arbitration Act, that it
was unconscionable, that it was vague, and that Spencer had waived arbitration by
substantially invoking the judicial process. At the hearing, Williams-Birdow
concentrated on her allegation that the two-page Contract was “vague” and
incomplete. On appeal, she expands that argument, noting that the two-page
Contract “does not provide the forum for arbitration, the rules applicable to this
arbitration, whether there will be a single arbitrator or a panel, whether the arbitration
is binding or not, or any other essential element to define the duties and obligations of
the parties in this proceeding.” Further, she argues that the Contract was “unilaterally
rescinded” by Spencer and therefore void. In response, Spencer relies on the
“evidentiary record developed in the briefing of Spencer’s Amended Motion” to show
that the trial court erred in denying arbitration. However, the trial court never heard
the Amended Motion, and Spencer is limited to the record developed on the original
Motion.
As set out above, Spencer’s initial burden on its Motion was to establish the
existence of a valid arbitration agreement between itself and Williams-Birdow. See
Henry, 551 S.W.3d at 115. At the hearing on Spencer’s Motion, Williams-Birdow
argued that Spencer did not establish the existence of a valid arbitration agreement
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because the two-page Contract was “vague” or incomplete. In addition, she argued
that the Contract had been rescinded. By providing a four-page Contract in its
Amended Motion, Spencer implicitly acknowledged that it failed to provide the
complete Contract in its Motion.
Even in its brief on appeal, Spencer repeatedly refers to the “missing pages” of
the Contract and acknowledges that it filed the Amended Motion after finding the
“missing pages” and “to assure that the record was clear and complete.” Moreover,
Spencer distinguishes between the “incomplete Contract” provided in its initial
Motion and the “complete Contact” tendered with its Amended Motion. Spencer
further acknowledges that the “effect of the May 18 Order [striking the Amended
Motion and evidence] is to deny Spencer the opportunity to establish the existence of
a valid arbitration agreement” and “a correct legal analysis must consider and construe
the complete Contract submitted with the Amended Motion to Compel.” We agree.
While there is a strong presumption in favor of arbitration, it arises only after a
valid arbitration agreement is proven to exist. Wright, 469 S.W.3d at 751. As set out
above, the trial court never construed the complete Contract because an order was
entered striking the complete Contract and Amended Motion. It is clear that a trial
court must examine the parties’ entire agreement to construe an arbitration
agreement. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003); United
Healthcare of Tex., Inc. v. Low-T Physicians Serv., P.LL.C., No. 02-20-00033-CV, 2021 WL
210846, at *5–6 (Tex. App.—Fort Worth Jan. 21, 2021, no pet.) (mem. op.). By
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failing to attach the complete four-page Contract to its original Motion or to offer the
four-page Contract into evidence at the hearing, Spencer failed to meet its initial
burden to establish the existence of a valid arbitration agreement. See Henry, 551 S.W.
3d at 115; see also Smart Call, LLC v. Genio Mobile, Inc., No. 14-13-00223-CV, 2014 WL
3955083, at *7 (Tex. App.—Houston [14th Dist.] Aug. 14, 2014, pet. denied) (mem.
op.) (affirming trial court’s denial of motion to compel arbitration where movant did
not conclusively establish existence of agreement and did not request evidentiary
hearing).
Moreover, the trial court never ruled on any of Williams-Birdow’s defenses to
arbitration. While Spencer spends twenty-six pages on appeal arguing why all of the
defenses lack merit, the trial court failed to address any of the defenses except
rescission. And as pointed out at the hearing, the rescission issue only arose the
previous day at a deposition. Evidence pertinent to that defense was attached to
briefs and motions filed after the hearing. The trial court never ruled on any of these
matters, and we express no opinion on the merits of them or any other issue raised by
the parties. See Solano, 388 S.W.3d at 354 n.3 (“In the event Solano raises the
discovery sanction issue on remand to the trial court, our opinion should not be read
as expressing any opinion on the merits of that issue.”).
While Spencer argues in its brief that the “evidentiary record . . . is complete”
and shows that this court should reverse and render judgment compelling the parties
to arbitration, the record is anything but complete. Because the trial court refused to
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hear Spencer’s Amended Motion and consider the Contract, we do not know what
evidence a complete record might have contained relative to the arguments made by
both parties. In addition, although requested, the trial court did not file findings of
fact or conclusions of law. We overrule Spencer’s third and fourth issues.
IV. CONCLUSION
Having overruled Spencer’s third and fourth issues, but having sustained its
first and second issues, we reverse the trial court’s order striking Spencer’s Amended
Motion and evidence and remand to the trial court for proceedings consistent with
this opinion. See Tex. R. App. P. 43.2(d).
/s/ Dana Womack
Dana Womack
Justice
Delivered: March 2, 2023
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