## In the Court of Appeals Second Appellate District of Tex as

a t Fo r t Worth

___________________________ No. 02

- 23

- 00035

- CV

___________________________

On Appeal from the 415th District Court Parker County, Texas Trial Court No. CV22

- 1664
Before Sudderth, C.J.; Birdwell and Womack, JJ. Memorand um Opinio n by Justice Womack 

### J.B. H UNT 

### T RANSPORT 

### , I NC



### . , Appellant

V


### . K IM 

### L ESTER 

### , Appellee2 MEMORANDUM OPINION
I. I NTRODUCT ION
I n o n e issue, Appellant J.B. Hunt Transport, Inc. appeals the denial of its motion to compel arbitration of p ersonal injury claims by Appellee Ki m Lester , an employee of J.B. Hunt who was dr iving a t ractor trailer “ in t andem ” with another employee

- driver bu t who was resting when her injuries occurred

. We will reverse and
remand

. II. B ACKGROUND On November 3, 2020, Lester was an employee of J.B. Hunt , bu t as alleged in
he r pleadings, “ was no t on the clock o r within the course and scope of her employme nt ” because her shift had ended and Brian McCarthy had “ swapped positions as driver and operator of the tractor trailer and assumed the role of driver. ”
Short ly aft er McCarthy beg an driving and Lester had moved to the sleeping
compartment , McCarthy performed a “ hard br [ ak e] , ” causing Lester “ to fly forward and collide with the metal barrier between the driving area and the resting are a. ”
Al most two years later, Lester file d sui t against J.B. H un t and McCarthy 1 fo r her injuries. J.B. Hunt answered the lawsuit and filed a plea in abatem ent and motion to compel arbitration. Attached to the motion were the “ r elevant page[s] ” of the “ J.B.

1 McCa rthy is n either a p arty to th is appeal n or a party to the underlying motion to com pel arbitration

.3

Hunt Texas Injury Benefi t Plan ” (the Plan)

. It co ntained wh at purported to be the signat ure s of Lest er and an uni denti fied person represent ing J.B. Hunt. The P lan required that arbitration be administered by the American A rbitration Association (AA A ) and tha t the Federal Arbit r ation Act (FAA ) “ govern the interpre tation,
enforcemen t, and pr oceedings under the arbitration provisions of [the] Plan. ”
As rel ev ant to this appeal , the Plan contained the following provisions : The Employ e r hereby adop ts a mand atory co mpany policy requir in g that th e fol lowing claims or dispute s must be submitted to final and binding arbi tration under this Appendix: . . . any leg al or equita ble claim by or with respect to an Employee for any form of physica l or psychologi c al dama ge, harm or death which relat es to an accident, occupational diseas e, or cum ulative trauma

. . . . The determination of whether a claim is covered by this Appendix shall also be subject to arbitration under this Appendix. Neither a n Emp loyee nor a n Emplo yer shall be entitled t o a bench or jury trial on any claim covered by this Appendix. . . . This binding arbitration will be the sole and exclusive r emedy for resolving any such claim or dispute.

. . . . The arbitrator, a n d n ot any feder a l, state , or local court or agen cy, shall have exclusive a uthority to res olve any dispute relating to the in terpretation, applicability , enforce ability or fo rm ation of this agreement including, but not limited to, any claim that all or any par t of this ag reement i s void or voidable.
I n the para graph before the signatu re line s, the si gn e r acknowle dge d that the plan
include d a man dator

y co mpany policy requiring that “ claims or disputes relating to the cause of an on

- the

- job inju r y ” b e s u bmitt e d to an arbitrator

. Two sentences before the signature lines and in bo ld type wer e th e following words : “ I understand4

tha t the arbitrator, a nd not a judge or jury, has the exclusive authority to re solve any dispute abo ut the enforceabil i ty of thi s arb itration. ”
In her response to the motion , Lester argued that her claims di d not fall w ithin the scope of the arbitration agreement be ca use she was not wit hin the course and scope of her employment at the time of her injuries. To supp ort her argument , she point ed to the def

in ition of “ Course and Scope of Emp loy ment ” contained in the
P la n: “ an activity of any kind or cha ra cter for which the Participant was hired and that has to do with, and originate s in, the work, b usin e ss , tr ade or p rofession of an Emplo yer, and that is performed by a Participant in the fur theranc e of the affairs or
bu sine ss of an Employe r. ” A ccording to the Plan, t he term does not include “ any injury occurring before the Participant cl o cks i n or otherwise begins work for an Employer or after the Partic ipant clocks out or otherwi se ceases work fo r an Emplo yer. ” Also i n h e r response, Lester noted that , had J.B. Hunt accepted her claim for benefits under the Plan, she may not have need e d to file suit

. The only evidence
attached to her response was a letter from the Plan ’ s a dminis trato r denying Lester ’ s claim for b en efits. The letter stated that benefits were denied (1) for failure to timely

re port the injury as required by the Pl an and (2) f or insufficient evidence to support

an accident or inju ry in the course and scope of emplo yment
.5

At the non

- eviden tiary hearing on t he motion, 2 Lester did not c hallenge the validity of the agreement
. Rather, sh e ref e r red to the le tter attached to her response
and argue d that , based on the denial of benef its under the Plan, a rbitration was not required

. Lester ’ s attorney also noted th at “ to protect the statute of limitations, a
concurrent arbitration ” had been f iled with the AAA. J.B. Hunt argu ed that Les t er did not contest the arbitration agreement and that t he only issue before the court was determin ing wh ether the claim f ell within the scope of the arbitration agreement. Further, J.B. Hu nt a s s ert ed that the trial court did not have the authority to make the
scope determination as that issu e should be sent t o arbitration. A t the conclusion o f the hearing, the trial court took the m atter under advisement. L ater , t he trial cou rt signed an o rder denying the plea in abatement and the mo tion to compel a r bit ratio n. J. B. Hunt appeals from t hat order. See Tex. Civ. Prac. & Rem . Code Ann. § § 51 .016, 171.098( a)(1) ; see als o 9 U.S.C. § 16(a )(1)(B) , ( C).
I II
. D ISCUSSIO N In one issue, J.B. Hunt c omplains that the trial court erred in denying i ts motion to compel arbitration “ because the t rial court ’ s o rde r permits Lester to

2 W he ther or not an e videntiary heari n g should be held depends on the circums tances. In re MP Ventures of S . Tx., Ltd. , 2 76 S .W.3d 524 , 528 n.4 (T ex. App.

— San Antonio 2008, orig. pro ceeding). If material facts are uncontr overted, the trial court may decide whet her to compe l arbitrati on based on th e affidavits, plea dings, discover y, and stipulations. Id. ( citing Jack B. An

g lin Co. v. Ti

pps , 842 S.W.2d 266, 269 (Tex . 1992) (orig. proceeding) ) . The t ria l court is only requir ed to hold a heari ng to r esolve di sputed facts. Id

.6

continue to litigat e her claims in derogation of a broadly

- worded, ma ndatory

a r bitr a ti on provision ” in the Plan.
A
. Standard of Review
We review a trial cou rt ’ s deci sio n to deny a mo tion to comp el arbitration for
abuse of disc retion. Henry v. Cash Bi z , LP , 551 S.W.3d 111, 115 (Tex. 2018). A trial
court abu s es i ts discr etion if it a ct s in a n arbitra ry or unreasonable manner or acts
wi thout reference to any g uiding rules or principles. Downer v. Aquamar ine Operat ors, Inc. , 701 S

. W

. 2 d 2 3 8 , 2 4 1

– 42 (Tex. 19 85). A party seeking to compel arbitration bears the bu r den to estab lish (1) the

ex istence of a valid arbitration agr eement and (2) that the disputed claims f all within the scope of th at agreemen t. Wagner v. Apac he Corp. , 627 S.W.3d 277, 284 (Tex. 202 1) ;

see J

. M

. D a v i d s o n , Inc. v . W e b s t e r , 1 2 8 S

. W

. 3 d 2 2 3 , 2 2 7 (

T e x . 2 0 0 3 ) ; see also Lenna r Homes of Tex

. Land & Constr

. , L td. v . Whiteley , No. 21

- 0783, 202 3 WL 3398 584, at *5 (Tex. May 12, 2023). If the party seeking arbitrat ion mee ts i t s two

- pronged burden to establish the agreement ’ s validity and scope, then the burd e n shifts t o the party

o pposi ng arbitration to raise a valid defense to the agreement ’ s en forcement , and
absent evidence suppor ting such a d efense, the trial court must compel arbitration. J.M. Davi dson , Inc. , 128 S.W.3d at 227

– 28

. A trial court ’ s determi n ation s a s to wh e ther a valid arbit ration agreement exists
and whether the claims fall with in the sc ope of an ar bi tration agreeme nt a r e legal determinations subjec t to de novo review

. In re Labatt Food Serv., L.P. , 279 S.W.3d7

640, 643 (T e x. 2009) (orig. pr o ceeding )

. Similarly, all “ gatewa y matters ” are questions
of law that we review de novo. Lennar H omes of Tex. Land & Constr., Ltd. , 20 23 WL
339 8584, at *5.
Because the trial court here did not enter specific findings of fact or
conclusi ons of law to expl a in its denial of the m oti on to co mpel ar b itration, we infer
that the trial court made all necessar y finding s to support its ruling. Kmart Stores of
Tex

. , L.L.C. v. Ramire z

, 510 S .W. 3d 559, 565 (Tex. App.

— El Paso 2016, pet. d enied)

. And, because no findi n gs or c onclusions were e ntered, “ we must uphold the t rial

court ’ s decision on any appropr iate lega l th eory urged below

. ” APC Home Health Servs., Inc. v. Martinez

, 600 S.W.3d 381, 389 (Tex. App

. — El Paso 2019, no pet.) (emphasis added). “ Ye t, as a corollary, we a re limited to c onsidering the grounds presented to the trial court by the party resisting arbitration. ” Id

. B
. A nalysis
I n it s initial appellate brief , J. B. H u nt confines its arguments to th ose made at
the trial cou rt, namel y that Lester ’ s claim s “ fall within the broa d language of the
arbitration clause , ” and more fundamentally, that the issue as to whether her claims
fall withi n the scop e of the arbitra tion pro vision should have been sent to th e

ar bitra tor
. In response, Lester r aises several arguments that were neither in her response to the motion to compel arbit ration nor in her arguments at the hearing
below , in c luding the following : (1) the “ contract was improperly formed ” because the
Pla n ’ s signatu re line f

or J.B. Hunt contains an illegible si gnat u re and fails to state that8

person ’ s position with J.B. Hun t; ( 2 ) unde r a state law analysi s, no valid arbitration

c o ntract wa s ever formed be cause the contract did not show that each party and its

attorn ey signed the agreement as r equired by Texas Civil P r actice an d Remedies Code
Section 171.002 (c) ; and ( 3 ) under a federal la w analysis, an interstate truck drive r li k e Lester canno t be compell ed to arbitrate her claims under 9 U.S.C. § 1

. In it s reply brief, J.B. Hunt argues that all of Leste r ’ s appell ate a rguments, with the exception of
the scope argument and the right to delegate that issue to th e arbitrator , cann ot be
considered due to Lester ’ s failure to present them to the trial court. We will add res s these is sues in turn as necessary to the dispositio n of this appeal.
1. Did J.B. Hunt meet its burden to estab lish the existence of a valid arbit ration agr e ement?
Because arbitra tion is a m atter of contract, courts must first decide whether a

v alid ar bi tration agree ment exists. See TotalEnergies E&P USA, In c. v. MP Gul f of Mexico, LLC

, No. 21

- 0028, 2023 WL 2939648 , at *19 ( Tex. Apr. 14, 2023) (citing Henry Schein, Inc. v. Archer & White Sale s, Inc. , 139 S. Ct. 524, 530 (2019))

. As the party

see king a rbi t ration, the burden was on J. B. Hunt to establish the e xistence of a valid arbitration agreement. See Henry , 5 51 S.W.3d at 115. J.B. Hunt attac h ed to its motion a copy of the Plan contain ing the arbitration agreement which was purpor tedly sig ned by L es ter and an indi vidual on behalf of J. B.
Hunt. I n the Pl an , the parties agreed that “ any leg al or equitabl e claim by or w ith
resp ect to an E mployee for any form of physical or psychological damage, harm or9

death which relates to an accide nt, occu pa tional disease, or cumulative trau ma ” would
be s ubmitted to “ final and binding arbitration. ” The Plan also stat ed that neither
party “ shall be e n titled to a bench or jury trial on any claim covered ” by the Plan. Further, “ [ t

] he arbitrat or, and no t any fed eral, state, or local court or agency ” ha s the

“ exclusive aut hori ty to resolve any disput e ” regardin g the agreement or the

“ en forceability of this arbitration. ” Generally, a “ written arbitration a greement is prima f acie vali d and mu st be
enfor ced unless the opposing party . . . ‘ allege[s] and prove[s] that th e arbitra ti on clause i tself was a prod uct of fraud, coercion, or such g r ounds as exist a t law or in
eq uity for the revocation of the contract

. ’ ” Knox Wast e Serv ., LLC v. Sherman , No. 11

- 19

- 00407

- CV, 2021 WL 4470876 , at *2 (Tex. App.

— Eastland Sept. 3 0, 20 21, no pet

. ) ( mem. op.) ( quoting Freude nsprung v. Offshore Tech., Servs. , Inc. , 3 79 F.3d 327, 341 (5 th
Cir. 2004 ) (internal quota tions omitted) ). In addition, the uncontested existence of

t he non

- movant ’ s si gna ture on an arbitrati on agreem e nt meets the evidentiary

st andard ne cessary to prove the prima facie existence of an a rbi tration a greement. APC Home Health S e rv

s, Inc. , 600 S.W.3d at 390

. O n appeal , Leste r argues that “ the signature l ine labeled ‘ For the Employer ’

cont ain s an ill e gible signature and does not id entify the signer, their position with J.B. Hunt, or any i ndication that the signer has the authority to bind J.B. Hunt

. ”
Therefor e, Lester contends that J.B. Hunt failed to show prima facie evidence of a
valid arbi tration agreement between the parties. H owever , this argument was not10

raised in the trial court

. There fore, it cannot be co nsidered on appeal

. See Tex. R. App. P. 33

. 1 (a)(1) ( “ As a prerequisite to pr esenting a complaint for appellate review,
the record must show that . . . the c o mplaint was made to the t ri al court . . . . ” ); see als o Pirtle v. Gregory , 629 S.W.2d 919 , 920 (Te x. 1982) ( stat ing that a p a rty “ should not be permitted to waive, consent to , or neglec t to comp lain about an error at t rial and then surprise his oppone nt o n appeal by s tating his comp laint for the first time ” ). Even if
it was not waived for failure to present it to the t rial court , the su preme cou rt has

“ never held that the employer must sign the arbitration agreement bef ore it may insist on arbitrating a dispute with i ts employee

. ” In re Polymerica , LLC , 296 S.W.3d 74, 76 (Tex. 2009) (orig. proceeding) ; In re AdvancePCS Health, L.P. , 172 S.W.3d 6 0 3, 606 (Tex. 2005) (orig. proceeding) ( “ [ N]either the FAA nor Texas law requires that
arbitration clauses be sign ed, so long as they are wr itten and agreed t o by the
part ies. ” ). J. B. Hunt attached the “ re levant page[s] ” of the Plan to it s motion t o compel

. 3
Lester does not dispute that she signe d the document. T her e fore, J.B. Hunt ’ s signed

co py of the arbitration agreement co ntained within the Plan establis h ed a prima facie
valid ar bitration agreement and satisfied J.B. Hunt ’ s i nitial burden in seeking

3 On appeal, in her Statem ent of Facts, Les ter for the fi rst time states that “ the record does not contain the whole con t ract (the Pla n), only e xcerpts. ” To the extent that this can be int erpreted as a n argument supporting the trial court ’ s ruling , the
a r g ument was never raised be fore the trial co u rt and cannot be considered on appeal

. See Tex. R. App. P. 33.1 (a).11

ar bitrati on . See Wagner

, 627 S.W.3d at 284 ; see also In re DISH Netw or k, L.L.C. , 563 S.W.3d 433, 439 (Tex. App.

— El Paso 2018, orig. proceedi ng ).
2. Did J.B. Hunt meet i t s burden to establish that the dis puted claims f ell within the scope of that agreement?
After est ab lishing the existence of a valid arbi tration agreement , it was J.B.
Hunt ’ s next burden to establish that the claims at issue fe ll within the scope of that

a greement. See Henry , 551 S.W.3d a t 115 ; s ee also TotalEnerg ies , 2023 WL 2939648, at
*19.
T he scop e of arbitration issue wa s recentl y discuss ed by the Texas Supreme
Court

. In TotalEnergies , the court addressed a di spute over whet her the parties ’

cont ract s requ ired them to resolve their co ntroversie s through arbitration and whether they agreed tha t an ar bitrator, r ather than the courts , must resolve that dispute. Total

Ener gies , 2023 WL 2939628, at * 1. In resolving the case , the c ourt first
noted : A dispute over whether parti es agre e d to r esolve their controversies th rough arbitration

— refe rred to as a dispute over th e co ntroversi es ’

“ a rbit rability ”

— typi cally encompasse s three distinct disa greements: (1) the merits of the u nderlying controversy [ ] ; (2) whet her the merits must be r eso l

ved th rough arbitration instead of in th e courts; and (3) who (a court or the arbitrator ) decide s the se cond question.
Id. at * 4 (citing RSL Funding, LLC v. Newsome , 569 S.W.3d 116, 120 (T e x. 2018) )

. T he

cou r t st at ed that “ [t]he second question must be a nswere d before the first, but the

t hird mus t be answered before t he second. ” Id. Theref ore, the cou rt began with the third question. Id.12

We to o begin with the third question. In the P lan at issue he re, the agreement expressly provi ded t hat the “ determ i nation of whether a claim is covere d ” by the Plan

“ shall also be subject to arbitration. ” Fu rth er, the “ arbitrator, and not any federal,

state , or local court or agency ” has the “ exclusi ve authority to resolve any dispute relating to the i nterpre t ation, applicability, enforceabilit y or formation ” of the
agreement. Finally, an y arbitra tio n u nder the Plan “ will be administered by the [AAA]
under its t hen

- current Employment Arbitration Rule s and Mediation P r ocedur es. ” Rule 6(a) of th e AAA Employ ment Rules states, “ The arbitrator shall h ave the p owe r to rule on his or her own jurisdicti on , including any objections with respect to the
exi st ence, scope or validity of the arbitration agreement. ” Am

. Ar b

. As s ’ n, Employment
Arbitration Rul

es & Mediation Procedures R ule 6(a) (2023),
h ttp://adr .org/site s/d efault/files/E mpl oymentR ules

- Web.pdf. Lester argues that her claims do not fall within the scope of the arbitration agreement because they are no t based on work

- re l ated i njuries as she was off the
cl ock and not within the course an d scope of her employm ent when she was injured

. To sup port her argument, Leste r refers to the letter from the Plan ’ s administrator denying Lester ’ s claim for benefits. However, as not ed b y J. B. Hunt, the “ scope of
the Plan benefits for injuries and the scope of the arbitratio n clause are not

coe xtensive ” ; rathe r, they are different. Regardless of the scope of the Plan benefits,

t he arbitration pr ovision applies to “ any lega l or equita ble claim by or with resp ect to13

an Employe e for any form of physical or psychol o gi cal da mage, harm or death which relates to an accident, occupational disease, or cumulative trauma. ”
I n TotalEnergies , the court h eld that it “ ag r ee[d] w i th the vast majo ri ty of courts that , as a general ru le, an agreement to arbitrate in acco rdance wi th the AAA or similar rules constitutes a cle ar a nd unmistakable a greement that the arbitrator must decide whether the parties ’ disputes must be resolved thr o ugh arbitration

. ” TotalEnergies , 2023 WL 2939648, at *10. The court also expla ined that it “ need not
decide whether the arbi tration agreement [was] ‘ sufficiently ’ broad, howeve r, because

. . . any limitation contained within these parties ’ arbitration agre e men t d [id]

not af f ect the ag reement ’ s clear and unmis ta kable delegatio n of arbitrability issues to
the ar bi trator. ” Id. at * 12. And, while one party argued that t h e parties had “ agreed to arbitrate only certa in controversies and car ved out others, ” id. , the court reje cte d this argument be cause it “ ig nore [d] the severab ility rule and confla te [d] the parties ’
agree ment to a rbitrate disputes with their a greement to d elegate arbitrability issues to
the arbitrator. ” Id. at *14. Here, the parties not only exp r essly referred to arb i trab ility pur suant to the
AAA but also specifi cally delegated the scope issue to th e arbi tra tor. Further, the
AA A rules require the arbitrator t o rule on any objec tions “ with respect t o the existence, scope or validity of the arbitr a tion agreement

. ” Am

. Arb

. Ass ’ n, Employment
Arbitr ation Rules & Mediati on Procedures R

ule 6(a) (2023),
h ttp://adr.org/sites/default/files/E mploy mentR ules

- Web.pdf

. Therefore, s imilar to14

the TotalEnergies arbitration agreement , o bjections “ with respect to th e existence, scope or validi ty of the arbitration agreement ” between J.B. Hunt and Lester were del ega te d to the arbitrator

. TotalEnergies , 2023 WL 2939648, at * 3, * 5, * 10. We

conc lude that t he pa rties here have “ clearly and unmista kably ” de le gated t he
arb i trability issue to the arb itr ator
. 4 See i d. a t *19.

4 In her appellate brief, Lester co ntends th at “ [t]o co erce the parties to arbitrate wh a t they have not agreed t o arbitrate would fly in the fa c e of fairness , ” and , under the doctrine of esto ppel or qua s i

- esto p pel, “ a party seeking benefits from a contract cannot also avoid the burdens of a contract
. ” While Lester states that s he made th is argumen t below , it was only in her written response and w a s c ontained wi thin her

“ c ou rse and scope ” argu m ent , where she stated that J.B. Hunt should be “ estopped from taking the polar op posite po sition that [ Lester ’ s ] claims [

were ] within the cours e and scope of employmen t after all and must therefo re be subjec t to arbitration. ” Lester cited no autho r

ity below in support of this argument, and she did not raise it at the hearing on the moti on to compel arbitration

. Never theless , we have previously determin ed that wheth er certain cl aims are barre d by res judicat a should be referre d to the arbitrator. Robinso n v. Home Owners Mg mt. Enter s., Inc. , No. 02

- 20

- 00215

- CV, 2021 WL 924839, at *1 6 (Tex. App.

— Fort Worth Mar. 11, 2021, pet. den ied ) (mem. op.)

. I n makin g that decisi on, we relied on both United States S upreme C ourt and Texas Su preme Co urt prece de n t. See i d. at *5 ( citing Howsam v. Dean Witter Reynolds, Inc. , 537 U.S. 79, 84, 123 S. Ct. 588, 592 ( 2002) (stat ing that “ issues of substantive arbitrability . . . are for a court to dec ide[,] and issues of procedura l arbitrability, i. e. , whet her prerequi sites suc h as time limits, notice, laches, estoppel , and other conditions pre cedent to an obligation to arbitrate have been met, are for the arbitrators to decid e ” ) (emphasis added) ; and G

. T. Leach Builders, L.L.C. v. S apphire V.P., LP , 458 S.W .3d 502, 521 (Tex. 201 5) (stating that courts presume that the par ties intend arbitrator s , not courts , to de cide disputes about the meaning and application of particular pro cedural precon ditions for t he use of arbitration , includ i n g “ the satisfacti on of ‘ p rerequisites such as t ime limits, notice, laches, estoppel , and other con ditions prece dent to an obligation to arbitra te ’ ” ) (emphasis added) ( quoting BG Grp., PLC v. Republi

c of Argentina , 572 U.S. 25, 34

– 35, 13 4 S. Ct. 1198, 120 6

– 07 (2014)) ). Sim ilar ly, we conclude here that any procedural matter relatin g to estoppel or quasi

- estoppel should be decided by the arbitrator.15

3. Were Lester ’ s appellate a rguments waived be cause she failed to present them to the trial court ?
Once the quest

ions of validity and scope are resolved affirmatively, the court
then considers whethe r any s tatute o r policy re nders th e claim s non arbitrable. See In r e W

. Dairy Transp

. , 45 7 S.W.3d 4 67 , 471 (T ex. App.

— El Paso 2014, no pet.). The party seeking t o invalidate an a rbitration agreement bears the burden of proof on th ese

matters. Id.
As no te d above, on a ppeal Les te r presents two arguments not prese nte d to the trial court: (1 ) under a fed eral la w anal ysis, an interstate truck drive r li ke Lester cannot
be co mpelled to arbit rate her claim s u nder 9 U.S.C. § 1 , 5 and (2 ) unde r a state law analys i s , no valid ar bitration c ontract was ever formed beca use the c ontract di d not

s how that each party a nd its attorney signed the agreement as r equired by Texas Civil
Practice and Remedies Code Sectio n 171.002 (c)

. Because of these new arguments , we must in it i ally answ er the qu estion whether
Lester h as preserved th e m for our re view

. As a gen eral rul e , a party is required to present a com plai nt to the tria l court befor e being allowed to raise the comp laint on
appe al. See Tex. R. A pp. P. 33.1 ; All Am

. Excava ti o n, In c . v . A ustin Ma terials, LLC , N o . 04

- 15

- 000779

- CV, 2 016 WL 1464409 , at *4 (Tex. App.

— San Antonio Apr. 13,

5 The FAA does not apply “ to c o ntracts of employment of seamen, ra ilroad emplo yees, or any o ther class of wor k e rs engaged in for eign or interst ate c ommerce. ” 9 U.S.C. § 1; see Circuit City Stores v. Adams , 532 U.S. 105, 112 , 121 S. Ct. 1302, 1307 (200 1 ).16

2016, no pet.) (mem. o p. ) ( stating that a p arty must pre se nt argument to the trial court or the argument is waiv ed and cannot be considered for t h e first t ime on appeal

)

. Regarding wa iver of the 9 U.S. C

. § 1 exemption, t he D allas Court of Appeals
has summarized the applicable law in t his a rea: Texa s courts have held that an objection to arbitration under the 9 U.S.C. § 1 exemption from ar bitratio n m ust be ra ise d before the trial court rule s on a motion t o compel arbitration. See C onn Appliances

, Inc. v. Puente , No. 09

- 18

- 00326

- CV, 202 0 WL 4680283 , at *4 (Tex. A pp.

— Be aumont 2020, no pet.) (mem. op.) (failure to object to arb itration procedure on t he gro und th at 9 U.S.C. § 1 exemption applie d before the t r ial court rules on mot ion to compel arbitration waived the objection); J.B. Hunt T

rans p ., Inc. v . Hartman , 30 7 S.W. 3d 804, 809 (Tex. App.

— San Antonio 20 10, no pet.) (on appeal from denial of motion t o compel arb itration, court of appeals re fused to consi d er whether 9 U.S. C. § 1 exem pted the dispute from arbitration when the appellee did not assert th e application of th e exemption in the tria l court). Gordon v. Trucking Res

. Inc. , No. 05

- 21

- 00746

- CV , 2 022 WL 1 694 5913 , at *2 (Tex. App.

— Dallas Nov. 15, 2022 , no pet. ) (mem. op.)

. In de termining whether an employee is a transportation worke r for purposes of the 9 U.S .C. § 1 exclusion, appellate courts review affidavit and live testimony as well as other e v idence p res ented
to the trial court

. Se e OEP Holdings , LLC v. Akhondi

, 570 S .W.3d 774, 778 (Tex. App.

— El Paso 2018, pet. d enied) ( “ Differ entia ting tran spor t ation wo rkers from those who only incidentally aid in the transport of good s is a fact intensive i n quiry

. ” )

. I n this case, Lester first a sserted the 9 U.S.C. § 1 exemption fr om ar bitration in her appellate brief. B efore the trial court , o ther th an attaching a letter from the Plan ’ s administrator to her response to the motion to compel arb itration , L e ster of fere d no17

evidence and made no argument regardi n g any matter other than scop e . Because she
failed to timely assert the transportation

- w orker exe mption to the trial court, we cannot rely on that ground to affirm the trial court ’ s ruling

. 6 See Tex

. R . App.
P. 3 3.1(a) ; J

.B. Hunt , 307 S. W.3d at 809 ( “ The issue of whether sect i on 1 o f the FAA
exempts Mr. Pilat from coverage was never presented to the trial court. Therefor e, we conclude this issue was not preserved for our review. ” ) ; see also Duarte v

. M ayamax Reha b

. Servs. , L.L .P. , 527 S.W.3d 249, 257

– 58 (Tex . App.

— El P aso 2016, pet. d enied) (h olding that because a ppellants failed to timely raise the argum ent regar din g wheth er arbitrator or trial court determines the validity of an y ar bitr a ti on agreem en t contai ned
in a challenged contract, a ppellants waived error on th i s argument)

. Re garding t he attorney ’ s signature on the arbitration agreement, under state law, an arb itratio n agreement is generally enforceable, but if it governs a personal injury clai m, the agr eeme nt must be approved and signed by both parties and their
attorneys
. Se e Tex. Ci

v. Prac. & Rem. Co de Ann. § 171.002(b)( 3) ; see also APC H o me

6 In it s r eply brief, J.B. Hunt argues th at , even i f n ot waived, th e transporta tion

worker ex emption does not a p ply in thi s case because the exemptio n applies o nly to

“ contrac ts of employment ” and this was “ an ERISA employee benefit plan that provides for cer tain no n

- fringe disability , d eath, dismemberm ent, a nd health car e benefits. ” See 9 U.S. C. § 1 ; see also I n r e Mission Petrole um Carri

e rs, Inc. , No. 13

- 04

- 00550

- CV, 2005 WL 326848 , at *2 (Tex. App.

— Corpus Christi

– Edinburg, Feb. 11, 2005 , or ig. proceed ing) (mem. op

. ) ( stat ing that the tr ansportation

- worker exemp tion did not apply becaus e “ the arbitration clause a t issue [was] found i n the Mis sion employee health and safety plan, rather than an employment contra c t ” ). Because we conclude that t his issue was not raised before the trial cour t , we ne e d not address this alternative argu ment.18

Heal th Serv s. , I nc. , 60 0 S.W.3d at 391; Chambers v. O ’ Quinn , 305 S.W.3d 141, 1 47 (Tex. App.

— Houston [ 1 s t Dist .] 200 9, pe t. d enied)

. Once again, this issue wa s not raised
b efore the tria l court. Therefore, we cannot now consider it on appeal. 7 See Tex. R. App. P. 33.1 (a)

. Also on appea l , Les ter alludes to other va gue “ con tract formation ” arguments and “ ad d itional bar [s] ” to arbitration

. She argues, without support , th at “ no v alid
arbitration contract was ever formed ” between J.B. Hunt and Lester. Howeve r, again,
she never raised th ese arguments in the trial court . Instead, her wr itten r esp onse to the mo t ion was limited to the “ cou rse and scope ” issue, and her att orney ’ s ar g ument before the trial court b egan with the admi ssion that “ there ’ s an arbitrati on agre e ment. An d the arbitration cla use defines whether or not that arbitrat io n agreemen t is going

7 In it s reply br

ief, J. B. H u n t argues that the dual s ignature argument is me ritless b ecause the FAA , not the TAA, applies in this situation. J.B. Hunt avoids the Texas statute i f t he FAA

— 9 U.S.C. § § 1

– 16

— appli es, because the FAA pre e mpt s conflic ting state law. AP C Ho me Health Ser v c s. , Inc. , 600 S.W.3d at 3 91. H e re, th e P l an specifically prov

ided that the F AA would control: “ The Federal Arbitration Act shall govern th e interpre tation, enfo rcement, a nd proceed ings under the arbitrati on provisio n s of this Plan. ” See Perry v. Thoma s , 482 U.S. 483, 489, 107 S

. Ct. 25 2 0 , 2525 (1 987) ( stating that the FAA applies when the dispute concerns a “ contract evidencing interstate commerce ” ). Wh ile the arbitrator co u ld apply the substantive l aw of Tex as, the arbi trator specifically could not a p p ly the “ Texas General Arb itration Act

. ” Where the FAA applies, the signature of counsel is not a prerequisite to enforcement of an arbitration ag reement
. See In re N e xion Health at Humble, Inc. , 173 S. W.3d 67, 70 ( Tex. 2005) (orig. proceeding) ( “ B ecaus e the T AA is p reempted by t he F AA in thi s case, the signature of Marjorie ’ s counsel was not a prereq uisite to enforcement of the ar bi tration agreeme nt. ” ). However, as i n the transportation

- worker

- exemptio n argument, we nee d not address th is alternative ar g u ment be cause it was not r aised before th e tria l court

.19

t o a pply. ” J.B. Hunt ’ s coun sel echoe d this understandi ng as he b e gan his argument to
the trial court : “ The court is c orrect, there is an arbitra tion agr eement. And Ms.
Lester doe s not contest that there ’ s an arbitration a gr e ement. T he issue before the

c ou r t today is w hat can this court do with respect to d et ermining if the claim fall s within the arbitration? ” Because she failed to present these argument s to the trial
court, Lester cannot now raise th e s e new arguments on ap peal

. See Tex. R. App. P.
33.1 (a )

. In summary, J.B. Hun t sa tisfied its two

- pr onged burden to establis h both the existence of a valid arbitration agreemen t and that the disputed claims f e ll within the scope of that agreement

. See W agner , 627 S.W.3d a t 284

. Lester failed to timely ra is e a valid defense to the agreement ’ s en force men t. See J.M. Davidson , Inc. , 128 S.W.3d at
227

– 28. Therefore , the trial cou rt abused its discretion in denying J.B. Hunt ’ s motion to compel arbitration. We sustain J.B. Hun t ’ s sole issue.
IV
. C O NCLUSION
H av i ng su stained J.B. Hunt ’ s so le issue, we rev erse and remand for entry of a n order comp ell ing arbitr at

ion and staying the pr oceedings in the trial court pending completion of the arbitration proceeding s . See Mid

- Am. Apts., L. P. v. Trojan , No. 02

- 21

- 00204

- C V , 202 1 WL 5028794 , at *7 (Tex. A pp.

— Fort Wo rth Oct. 28, 2021, no
pet. ) (mem. op.).20 / s/ Dan a Womack
D ana Wo m ack Justi ce Delivered: June 8, 2023