COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

VIBRA REHABILITATION

HOSPITAL OF EL PASO, LLC

d/b/a HIGHLANDS

REHABILITATION HOSPITAL,

SABRA TEXAS HOLDINGS, L.P.

, and DIANA SCHULTZ

,

Appellant s

,

v.

RAMIRO ILLARRAMENDI, JR.

,

Appellee. §

§

§

§

§

§

§

§ No. 08

- 2 3

- 00 13 7

- CV

Appeal from the

1 20 t h Judicial District Court

of El Paso County, Texas

(TC# 2 02 2 DCV299 9 )

MEMORANDUM OPINION

This case returns us to the recurrent issue of whe ther a non

- signatory to an arbitration

agreement can compel arbitration

. Ramiro Illarramendi, Jr., and Vibra Healthcare, LLC (Vibra)

were signatories to an arbitration agreem e nt to resolve any workplace

- injury claim

. Illarramendi

suffered a workplace injury and later filed suit against Vibra, together with three non

- signato r ies

—

Vibra Rehabilitation Hospital o f El Paso, L LC, d / b / a Highlands Rehabilitation Hospital

(Highlands), Diana Schultz (Schul t z)

, and Sabra Texas Holdings, L.P. (Sabra)

. 1 All the se

defendants moved to compel arbitration of Illarramendi ’ s workplace

- injury claims. The trial court

1 Illarramendi also sued Vibra Healthcare Real Estate Company, LLC, El Paso Healthcare System, Ltd., and HCA

Health Services of Texas, Inc., but these parties have been nonsuited.2

granted the motion as to Vibra but denied relief to our Appellants

— Highlands, Schultz

, and Sabra

.

We reverse as to Highlands because it was Illarramendi ’ s employer and is specifically referenced

in the arbitration agreement. We also reverse as to Schultz

— the CEO of Highlands

— because she

was acting in the s cope of her agency with Highlands. We affirm as to Sabra

, which has no

connection to the arbitration agreement and was sued as the premises owner over alleged premises

defect s

.



### B ACKGROUND

A. Factual background

Illarramendi, a maintenance supervisor at Highlands, alleges that he was electrocuted and

f e ll from a ladder while inspecting a light fixture. H e asserts these claims against Vibra, Highlands,

Schultz

, and Sabra :

Vibra, although not alleged to be I llarramendi ’ s employer, “ owed [him] a duty through

. . . exercise of control over the details of [his] work

, ” which duty it breached by failing to

provide adequate “ policies, procedures, and equipment

. ”

Highlands, for whom Illarramendi “ was working in the course and scope of his

employment ” when the alleged incident occurred

, had a duty to “ provid e sufficient

training, assistance, and equipment for [him] to

. . . perform his work safely [

, ] ” but failed

to do so.

Schultz, Highlands ’ s CEO, instructed [Illarramendi] “ to inspect a light that seemed to be

out of orde r

. . . despite [having] knowledge that the hospital was underfunded and

understaffed, and without ensuring [he] was qualified and properly equipped [

. ] ” 2

Sabra, as “ owner ” and “ possessor ” of the premises

, “ owed

. . . a duty of ordinary care in

maintaining a safe working environment, including a responsibility to inspect and make

safe any dangerous condition or give adequate warning of any hazardous conditions

, ” but

failed to do so.

Illarramendi concedes he elected to participate in Vibra ’ s employee injury benefit plan (the

2 This allegation is found in the factual

- background section of Illarramendi ’ s pleading. T he pleading ’ s causes

- of

action section does not mention Schultz

.3

Plan)

, including the arbitration agreement that it contains

. T he Plan contains these provisions

relevant to our dispute :

1.2 Purpose

. The purpose of this Plan is to provide eligible Texas employees of

the Company who comply with the requirements specified

. . . certain medical

and wage continuation benefits in the event of an on

- the

- job injury

. . . .

2.6 Company

. “ Company ” means Vibra Healthcare, LLC with its princip [al]

place of business located at 4600 Lena Drive, Mechanicsburg, PA 17055 or

any affiliate or successor thereof that subsequently adopts the Plan.

2.9 Employee

. “ Employee ” means an individual employed in the regular business

of the Company who receives his or her pay on a regular basis by means of a

salary or wage directly from the Company

. . . .

10.1 Arbitration

. It is agreed that, except provided in Article VII [ benefit claims

proc edure ]

, any and all disputes, claims (whether tort, contract, statutory or

otherwise) and/or controversies which relate, in any manner, to this Plan or to

the occupational injury, death or disease of a Plan Participant shall be

submitted to final and binding arbitration under the Federal Arbitration

Ac t.

. . .

12.4 Employer Information

.

Your Employer ’ s name, address, business telephone number and identification

number are:

Vibra Healthcare, LLC

4600 Lena Drive

Mechanicsburg, PA 17055

(717) 591

- 5700

Participating sites identified in Addendum 1

ADDENDUM 1

PARTICIPATING SITES:

Highlands Rehabilitation Hospital

1395 George Dieter Drive

El Paso, TX 79936

Phone: (915) 298

- 7222

EIN: 47

- 1033481

Vibra ’ s general counsel, Douglas C. Yohe, testified below that “ [ Highlands ] is a 1 00%

owned subsidiary of Vibra Rehab Holdings, LP

, ” that “ Vibra Rehab Holdings, LP and [ Vibra ] are4

affiliates due to Brad E. Hollinger

. . . owning a supe rm ajority of both

, ” and that “ Highlands

. . .

and Diana Schultz are

. . . affiliates of and under corporate control of [ Vibra ]. ”

B. Procedural history

Shortly after Illarramendi filed suit

, Vibra and Appellants moved to compel arbitration

.

Following t wo h earings

, t he trial court granted the motion as to Vibra and denied it as to Highlands,

Schultz

, and Sabra

. 3 This interlocutory appeal follows. See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.016 ( “ In a matter subject to the Federal Arbitration Act

. . . a person may take an appeal

. . .

to the court of appeals from the

. . . interlocutory order of a district court

. . . under the same

circumstances that an appeal from a federal district court ’ s order or decision would be permitted

by 9 U.S.C. [§] 16

. ” ); 9 U.S.C. § 16(a)(1)(C) ( “ An appeal may be taken from

. . . an order

. . .

denying an application

. . . to compel arbitration ” ).



### D ISCUSSION

Before our Court, Appellants raise four issues, contending that the trial court erred by: (1)

denying their motion to compel arbitration as non

- signatories to the P lan; (2) not concluding that

Schultz can compel arbitration as Highlands ’ s agent; (3) not concluding that Illarramendi ’ s claims

are all “ factually intertwined, ” thereby entitling them to compel arbitration; and (4) not staying the

case until after the arbitration against Vibra is over. Illarramendi r esponded with a preliminary

challenge that we address first.

A. Controlling law and standard o f review

A party seeking to compel arbitration must establish the existence of a valid arbitration

agreement and that the claims raised fall within the agreement ’ s scope

. In re Odyssey Healthcare,

Inc

., 310 S.W.3d 419, 422 ( Tex. 2010)

. Whether an arbitration agreement is valid and enforceable

3 Illarramendi does not oppose being compelled to arbitrate his claims against Vibra

, wh o is not a party to this appeal

.5

is a legal question. J.M. Davidson, Inc. v. Webster

, 128 S.W.3d 223, 227 ( Tex. 2003)

. If the moving

party meets its burden of establishing a valid agreement, the burden shifts to the party opposing

arbitration to raise a valid defense against its enforcement. See In re McKinney

, 167 S.W.3d 833,

835 ( Tex. 2005) (per curiam) (orig. proceeding). Absent evidence of a valid defense, the trial court

must compel arbitration. J.M. Davidson, Inc.

, 128 S.W.3d at 227

. Or as our supreme court has

noted: “ [ T]he right to a jury trial is not discretionary. Nor is the right to have an arbitration contract

enforced. If the parties have not agreed to arbitration, no trial court has discretion to make them

go; if they have agreed to arbitration, no trial court has discretion to let one wriggle out. ” In re

Merrill Lynch Tr. Co. FSB

, 235 S.W.3d 185, 193 ( Tex. 200 7) (orig. proceeding)

.

“ Motions to compel arbitration are ordinarily decided in summary proceedings ‘ on the

basis of affidavits, pleadings, discovery, and stipulations. ’” APC Home Health Servs., Inc. v.

Martinez

, 600 S.W.3d 381, 388

– 89 ( Tex. App.

— El Paso 2019, no pet.) (quoting Jack B. Anglin

Co., Inc. v. Tipps

, 842 S.W.2d 266, 269 ( Tex. 1992) ). “ However, if the material facts necessary to

determine the issue are controverted, by an opposing affidavit or otherwise admissible evidence,

the trial court must conduct an evidentiary hearing to determine the disputed material facts. ” Tipps

,

842 S.W.2d at 269

.

We review a trial court ’ s denial of a motion to compel arbitration for abuse of discretion

and defer to its factual determinations if they are supported by the evidence; however, we review

its legal determinations de novo. Henry v. Cash Biz, LP

, 551 S.W.3d 111, 115 ( Tex. 2018) ; APC

Home Health

, 600 S.W.3d at 389

. Because here, the trial court did not enter findings of fact or

conclusions of law, we must uphold its decision on any appropriate legal theory urged below. Id.6

B. Must Appellants specifically challenge “ implied findings of fact ” ?

We begin by address ing Illarramendi ’ s argument that because Appellants failed to

challenge the trial court ’ s implied findings of fact, this appeal should be decided in his favor

without reaching the issues raised by Appellants

. As Illarramendi p osits

, “ Appellants have not

challenged the sufficiency of the evidence to support the trial court ’ s implied finding that they

failed to carry their burden of proof on the disputed fact issues

, ” and “ [u] nchallenged findings of

fact are binding on the Court [

. ] ” The sole disputed fact issue identified by Illarramendi is whether

Appellants “ adopted ” the Plan

.

While we agree unchallenged findings of fact are binding on this Court, we do not agree

that a “ finding ” that a party has failed to carry its burden of proof is a “ finding of fact. ” Rather,

this is a conclusion of law. Moreover

, and as explained below, we conclude that Highlands

presented evidence that it adopt ed Vibra ’ s plan. We next address the issues raised by Appellants.

C. Whether Highlands 4 adopted the Plan

While g enerally only parties to an arbitration agreement may compel arbitration

, there are

exceptions

. G.T. Leach Builders, LLC v. Sapphire V.P., LP

, 458 S.W.3d 502, 524 ( Tex. 2015) ; see

also

, In re Kellogg Brown & Root, Inc.

, 166 S.W.3d 732, 739 (Tex. 2005) (orig. proceeding)

(listing “ (1) incorporation by reference; (2) assumption; (3) agency; (4) alter ego; (5) equitable

estoppel, and (6) third

- party beneficiary ” ). Highland s focuses on on e such exception: “ signatories

to an arbitration agreement may identify other parties in their agreement who may enforce

arbitration as though they signed the agreement themselves. ” In re Rubiola

, 334 S.W.3d 220, 226

( Tex. 2011) (orig. proceeding )

.

4 Appellants ’ first issue globally references all three appellants

, but no argument is presented as to Schul t z or Sabra

. Thus, we address this issue only as to Highlands.7

Whether an arbitration agreement can be enforced by a non

- signatory depends on the

parties ’ intent as expressed in their agreement. Id. at 224

. Arbitration agreements are interpreted

under traditional contract principles. In re Whataburger Restaurants LLC

, 645 S.W.3d 188, 194

( Tex. 2022 ) (orig. proceeding)

. T hat is, t he plain language controls

, “ [w]ords must be construed

‘ in the context in which they are used, ’” and courts will “ examine and consider the entire writing

in an effort to harmonize and give effect to all the provisions of the contract so that none will be

rendered meaningless. ” Id

. at 194

– 95

. Further, “ [n] o single provision taken alone will be given

controlling effect; rather, all the provisions must be considered with reference to the whole

instrument. ” Id

. at 195

.

Here, it is undisputed that a valid arbitration agreement exists between Illarramendi and

Vibra

. That agreement is contained in the Plan

, whose purpose is to provide “ Employee s ” of “ the

Company ” certain benefits for on

- the

- job injur ies

. The Plan defines “ Employee ” as “ an individual

employed in the regular business of the Company

. ” It is undisputed that Illarramendi was an

employee of Highlands

, if not Vibra, at the time o f the alleged incident

.

The P lan defines “ Company ” as “ Vibra Healthcare, LLC

. . . or any affiliate or successor

thereof that subsequently adopts the Plan. ” Douglas C. Yohe

, in his capacity as General Counsel

for Vibra Healthcare, LLC and its affiliated entit i es and with knowledge regarding the corporate

structure of the same based on his job duties, avers that Vibra Rehabiliation Hospital d/b/a

Highlands Rehabilitation Hospital is a 100% owned subsidiary of Vibra Rehab Holdings, L P

, and

that Vibra Rehab Holdings, L P is an affiliate of Vibra Healthcare, LLC, as the entites have a

common supermajority owner. 5 As a res ult

, Illarramend i ’ s argu ment that Highlands cannot

5 Illarramendi objected to Yohe ’ s affidavit in the trial court, but his objections were overruled

. Illarramendi does not

challenge that ruling on appeal.8

compel arbitration hinges on Highlands not having “ adopted ” the Plan

.

Highlands argues it can compel arbitration because Vibra ’ s plan expressly identifies it as a

“ participating site ” in the P lan. Illarramendi disagrees

, contending that Highlands has failed to

prove it “ adopted ” the P lan. In support of this argument, Illarramendi relies on Golden Age Senior

Living of El Paso, LLC v. Atwood

, 486 S.W.3d 44 ( Tex. App.

— El Paso 2016, no pet.) and Red

Bluff, LLC v. Tarpley

, No. 14

- 17

- 00505

- CV, 2018 WL 6722346 ( Tex. App.

— Houston [14th Dist.]

Dec. 21, 2018, no pet. ) (mem

. op.)

. But both cases involve contract language that required specific

criteria for an affiliate to fall under the arbitration umbrella

— neither of which is required here.

Golden Age involved an employer

- employee arbitration agreement that conferred

arbitration rights on non

- signatory employer affiliates who “ had an economic interest in ” the

employer. 486 S.W.3d at 49

. The non

- signatory parties were denied arb itration rights because they

present ed no e vidence of having such an interest. Id

. The Plan here, has no comparable language.

Red Bluff involved an employer

- employee arbitration agreement that conferred arbitration rights

on non

- signatory employer affiliates if a two

- step procedure was performed : (1) the employer ’ s

board approve d the affiliate ’ s adoption of the employer ’ s employee injury benefit p lan; and ( 2 ) the

affiliate itself adopt ed the P l an by appropriate board resolutions

. 2018 WL 6722346, at * 6

. Be cause

the non

- signatory part y there failed to present evidence tha t both steps of th e required procedure

were performed

, it w as held to have no arbitration rights. Id

. at 7. The Plan here contains no

comparable requirements.

Rather, the Plan here does not define “ adopt

. ” “ When a contract leaves a term undefined,

we presume that the parties intended its plain, generally accepted meaning. ” Epps v. Fowler

, 351

S.W.3d 862, 866 ( Tex. 2011)

. Undefined terms are also construed in light of the entire document

in which they are contained. See Pharr

- San Juan

- Alamo Indep. Sch. Dist. v. Texas Pol.9

Subdivisions Prop./Cas. Joint Self Ins. Fund

, 642 S.W.3d 466, 474 ( Tex. 2022) (construing term

“ golf cart ” in context of entire pleading). “‘ Adopt ’ has multiple definitions [.] ” Kilgore ISD v.

Anderson

, No. 12

- 20

- 00133

- CV, 2020 WL 7635966, at *5 ( Tex. App.

— Tyler Dec. 22, 2020

,

no pet. ) (mem. op.) (concluding that its use in the tax code encompasses “ to choose or take as

one ’ s own; make one ’ s own by selection or assent ” ; “ to vote to accept ” ; or “ to accept or act in

accordance with ” ). Webster ’ s includes several definitions that could also apply here : “ to choose

or take as one ’ s own ; make one ’ s own by selection or assent ;

. . . to take or receive into any kind

of new relationship ;

. . . to a ccept or act in acco r dance with (a plan, principle, etc.) [.] ” Adopt

,

W EBSTER ’ S N E W U NIVERSAL U NABRIDGED D ICTIONARY

, ( 2003 )

.

Applying these concepts, the Plan and the record show that Highlands adopted the Plan

,

and consequently is governed by the arbitration agreement. Highlands is specifically referenced in

the Plan on A ddendum 1. It is listed on Adde n dum 1, not just as an address, but as an entity. As

reflected in Illarramendi ’ s own naming of the parties in the style of this case, “ Highlands

Rehabilitation Hospital ” is an assumed or trade name for “ Vibra Rehabilitation Hospital of

El Paso, LLC, ” and not simply a “ location, ” like “ 1395 George Dieter Drive. ” And importantly,

the list of participating sites

, includ ing Highlands Rehabilitation Hospital

, are listed with a unique

“ EIN ” number, which can be understood only as an employer identification number used by the

Internal Revenue Service for gathering wage and withholding information. 6 The unique EIN is

the clearest indication that the Adde n dum 1 lists entities, and not just locations.

The addendum is titled “ participating sites. ” The common meaning of participate by

dictionary definition includes “ to take or have a part or share, as with others; partake; share[.] ”

6 See Gandhi v. Centers for Medicare & Medicaid Servs.

, 665 F.Supp.3d 49, 52 (D.D.C. 2023) ( “ Employer

Identification Number ( “ EIN ” ), [is] a type of tax

- identification number assigned to businesses by the Internal Revenue

Service. ” ); 26 U.S.C.A. § 6109 ( describing issuance criteria for EIN and use in taxpayer tax returns )

.10

Participate

, W EBSTER ’ S N EW U NIVERSAL U NABRIDGED D ICTIONARY

, ( 2003 )

. When r eading the

ter m contextually, we conclude that Highlands (as an entity and not location) participates in the

employee injury plan. It was acting as the employer

— Illarramendi ’ s own pleadings assert that to

be the case

. 7 By Highlands employing Illarramendi, undertaking to giv e him direction and control,

it took affirmative action to step into the shoes of the “ Company ” as defined in the Plan. In the

context of the entire agreement, it adopted the Plan by playing the role of Employer. See Atiq v.

CoTechno Group, Inc

., No. 03

- 13

- 00762

- CV, 2015 WL 6871219, at *5 ( Tex. App.

— Austin

Nov. 4, 2015, pet. denied) ( mem. op.) (contract can be adopted “ either expressly or by accepting

its benefits ” ); Beesley v. Hydrocarbon Separation, Inc

., 358 S.W.3d 415, 423 ( Tex. App.

— Dallas

2012, no pet.) (same).

Illarramendi counters that Highlands failed to present evidence that it “ adopted ” the Plan

because the record does not include : (1) contracts showing adoption; (2) correspondence show ing

adoption; or (3) sworn testimony that the P lan was adopted

. But Illarramendi does not show that

these are the only types of evidence that might be relevant. He also acknowledges that the Plan

itself identifie s “ Highlands Rehabilitation Hospital ” as a “ partic ipating site

, ” although he contends

it “ simply lists the location where the incident occurred as ‘ Highlands Rehabilitation Hospital. ’”

We reject that construction of the Plan as the participating sites did not list simple geographic

locations

—

but entities identified by the EIN used to document wage and withholdings.

Next

, Illarramendi argues that there is no evidence that Highlands authorized itself to be

an entity “ listed as a ‘ participating site

. ’ ” But we see no thing in the Plan suggest ing Highlands

needed to authorize itself to be so listed

. And its participation as the employer would in any event

7 In some cases, pleading that a party is one ’ s employer may alone be enough to trigger an obligation to arbitrate with

that party under an employer

- employee arbitration agreement. See In re Macy ’ s Texas, Inc

., 291 S.W.3d 418, 420

( Tex. 2009) ( “ As Tomsic 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

. ” ) (emphasis added).11

act as acceptance of that designation. Relatedly, Illarramendi argues that “ nowhere on page 28 of

the Plan does the word ‘ adopt ’ or any form thereof exist ” and there is no “ signature or evidence of

conduct by any [ A ppellant] evidencing adoption. ” Again, we see nothing in the Plan requiring

Highla nds to sign any thing or engage in any particular conduct to “ adopt ” the P lan

. T hat is, t he

P lan requires no method or magic words for it to be adopt ed

, and we see no reason why

Highlands ’ s status as a participating site would not suffice to establish that it in fact adopted the

P lan.

Further, were we to hold that adoption of the Plan require s steps not specified in its text

,

we would be adding terms to the contract that the parties choose not to include. We would also

render meaningless both the P lan ’ s language “ Participating sites identified in Addendum 1 ” a nd

Addendum 1 itself, neither of which ha s any apparent purpose other than to identify affiliates of

Vibra which have adopted and implemented the P lan

. I n construing contractual language, we must

“ examine and consider the entire writing in an effort to harmonize and give effect to all the

provisions of the contract so that none will be rendered meaningless. ” In re Whataburger

, 645

S.W.3d at 195

.

Finally, Illar r amendi argues that the facts in Red Bluff were more conducive to finding that

the employe e injury benefit plan there had been adopte d

— the non

- signatory affiliate proffered an

affidavit expressly s tating it had adopted the P lan

— yet this evidence was held insufficient

. Yet

Red Bluff involved a plan with a specific two

- step procedure under which an employer affiliate

had to affirmatively opt into the arbitration agreement. 2018 WL 6722346, at * 6

. At best, the

affiliate there presented evidence of compliance with only part of one step. Id

. at * 7

. Here, i n

contrast, no particular procedure for adopting the Plan existed

, no “ affirmative opt

- in ” step s w ere

required

, and Highlands is expressly named as a participating site

. We conclude that Highlands12

established it adopted the Plan and thus is entitled to compel arbitration of Illarramendi ’ s

workplace

- injury claims.

D. Whether Schultz has a right to compel arbi t ration

As we consider Highlands holds a right to compel arbitration, we turn to whether Schultz,

its CEO

, holds the same right.

A nother way that a non

- signatory can c ompel compliance with an arbitration agreement is

by showing “ agency

. ” Jody James Farms, JV v. Altman G r p

. , Inc

., 547 S.W.3d 624, 633

( Tex. 2018)

. As the Texas Supreme Court explains

, “ a contracting party generally cannot avoid

unfavorable clauses by suing the other party ’ s agents ” ; t hus, “ an agent of a signatory may

sometimes invoke an arbitration clause against another signatory

. ” Id

. at 635 (quotation marks

omitted). The exception recognizes the idea that “ it is impractical to require every corporate agent

to sign or be listed in every contract. ” In re Kaplan Higher Educ. Corp.

, 235 S.W.3d 206, 209

( Tex. 2007) (orig. proceeding ). To establish that right

, a non

- signatory agent must “ show it was

subject to the principal signatory ’ s control and authorized to act as its agent

. ” Jody James Farms,

JV , 547 S.W.3d at 635

.

Here, Yohe ’ s affidavit states that non

- signatory Highlands and signatory Vibra have a

common owner and are affiliate s. The affidavit adds that both Highlands and Schultz were under

Vibra ’ s corporate control

. Further more

, Illarramendi acknowledges that Schultz was Highlands ’ s

CEO, meaning she was authorized to act as its agent as well as subject to its control. See Cobra

Acquisitions LLC v. AL Glob. Services, LLC

, No. 04

- 19

- 00410

- CV, 2020 WL 1931599, at *5

( Tex. App.

— San Antonio Apr. 22, 2020, no pet.) (mem. op.) ( holding corporate CEO who was

authorized to act as agent and under signator y ’ s control was c overed by arbitration agreement).

As a result, Schultz argues

, she has a right to compel arbitration under In re Vesta Ins.13

Grp

. , Inc

., 192 S.W.3d 759 ( Tex. 2006)

, which held that agents of a non

- signatory affiliate were

entitled to invoke an arbitration clause given that the affiliate was so entitled

. 192 S.W.3d at 764

.

As the Vesta court reasoned :

[C] orporations must act through human agents

. . . . When contracting parties agree

to arbitrate all disputes “ under or with respect to ” a contract (as they did here), they

generally intend to include disputes about their agents ’ actions because “ [a]s a

general rule, the actions of a corporate agent on behalf of the corporation are

deemed the corporation ’ s acts. ” If arbitration clauses only apply to contractual

signatories, then this intent can only be accomplished by having every officer and

agent (and every affiliate and its officers and agents) either sign the contract or be

listed as a third

- party beneficiary. This would not place such clauses on an equal

footing with all other parts of a corporate contract [and would thus not comport

with federal and state policy regarding arbitration ]

.

Id. at 762 (citation omitted).

Illarramendi does not argue Vesta ’ s reasoning would not apply

. Instead, he claims that (1)

Highlands cannot show it is a part y to the arbitration, th us Schultz ’ s agency relationship with

Highlands is moot ; and (2) Schultz ’ s “ exact argument ” was overruled in Golden Age

.

But we have already concluded above that Highlands could compel arbitration as a

participant in the Plan

, so too would its agents, like Schultz

. Stated otherwise, Illarramendi offers

no reason why Schultz cannot compel arbitration if Highlands c an do so

. Further

, Golden Age

involved a different scenario. There, the non

- signatory parties failed to prove they : (1) had an

economic interest in the signatory employer

, and (2) were agents of the employer. 486 S.W.3d at

49

. Here, Schultz has shown

, through Yohe ’ s affidavit

, that she operates under Vibra ’ s corporate

control. And while Illarramendi contends that Yohe ’ s affidavit “ demonstrates that Vibra

. . . does

not own or control any part of the parties seeking to compel arbitration, ” this contention cannot be

squared with the affidavit ’ s plain state ment that Highlands and Schultz are “ affiliates of and under

corporate control of Vibra [

. ] ”

We conclude that Schultz

, as Highlands ’ s agent, is entitled to compel arbitration of14

Illarramendi ’ s workplace

- injury claims under Jody Jame s Farms and Vesta

, and is not precluded

from doing so by Golden Age

.

E. Whether intertwining of claims entitles Sabra 8 to compel arbitration

Sabra argues it could compel arbitration because Illarramendi ’ s claims against it are “ based

on the same operative facts and are substantially similar and intertwined with the claims

[Illarramendi] has asserted against Vibra [

. ] ” In support of this argument

, Sabra cites Texas

Petrochemicals LP v. ISP Water Mgmt. Services LLC

, 301 S.W.3d 879 ( Tex. App.

— Beaumont

2009, no pet.) and Natgasoline LLC v. Refractory Constr. Servs., Co

., 566 S.W.3d 871

( Tex. App.

— Houston [14th Dist.] 2018, pet. denied )

. Neither case is controlling, nor so persuasive

for us to adopt the doctrine in this district for this set of facts

.

Texas Petrochemicals did not address whether a non

- signatory might be able to compel

arbitration

. Instead

, the case decided whether claims outside the scope of an arbitration agreement

might still be required to be arbitrated

. 301 S.W.3d at 885

. Thus, Texas Petrochemicals is of little

assistance here. The Natgasoline court discusses an “ intertwined

- claims theory ” as recognized by

the United States Second Circuit Court of Appeals

, but it also notes this theory has not been

adopted by the Texas Supreme Court. 566 S.W.3d at 88 8

. 9 Moreover, the Second Circuit ’ s theory

does not apply “ whenever a relationship of any kind may be found among the parties to a dispute

and their dispute deals with the subject matter of an arbitration contract made by one of them

. ” Id

.

8 Appellants ’ Issue Three mentions all three A ppellants, but we have already concluded that Highlands and Schultz

are entitled to compel arbitration. Thus, we address this issue only as to Sabra

, and express no opinion on how th e

intertwining of claims as between Vibra and Highlands might provide a secondary basis for Highlands (and Schultz)

to compel arbitration

.

9 Sabra cite s an earlier Fourteenth Court of Appeals ’ opinion in Cotton Commercial USA v. Clear Creek Indep. Sch.

Dist

., 387 S.W.3d 99, 105 ( Tex. App.

— Houston [14th Dist.] 2012, no pet.) for the proposition that t he Texas Supreme

Court recognizes an ‘ intertwined

- claims ’ test

. Our reading o f the Texas Supreme Court ’ s decision, however, better

comports with the Fourteenth C our t ’ s later 2018 opinion in Natgasoline

, that it has not. 566 S.W.3d at 888 ( citing

Jody James Farms, JV v. Altman Group, Inc ., 547 S.W.3d 624, 639 (Tex. 2018) )

.15

Instead, “ the relationship must be closer than merely independent participants in a business

transaction. ” Id

. at 889

.

Here, Sabra makes no argument that its relationship with Vibra or any other party entitled

to arbitrate is closer than that between independent parties to a business transaction. On this record,

it is no more than the landlord to Vibra or Highlands

. Sabra has not shown itself to have a right to

compel arbitration of Illarramendi ’ s workplace

- injury claims.

F. Whether a stay is required

Appellants ’ last issue, relevant now only to Sabra, is whether the trial court should have

stayed the case while the arbitration proceeds against Vibra. A stay would be required when “ the

same issues must be decided both in arbitration (against [a signatory]) and in court (against [a non

signatory ])

. ” In re Merrill Lynch Tr. Co. FSB

, 235 S.W.3d 185, 195 ( Tex. 2007 ) (orig. proceeding)

.

“ [ T ] he Federal Arbitration Act generally requires the arbitration to go forward first; arbitration

should be given priority to the extent it is likely to resolve issues material to this lawsuit

. ” Id

.

(quotation marks omitted) ; See also In re Merrill Lynch & Co.

, 315 S.W.3d 888, 891 ( Tex. 2010)

(orig. proceeding) (parallel litigation involving non

- signatory to arbitration agreement should be

stayed if it “ threaten[s] to undermine or moot the arbitration ” ).

Under Issue Four, Sabra asks us to review t he trial court ’ s decision that denied a stay when

three, and not one defendant, remained in the litigation. Because we conclude that Highlands and

Schultz should also join the arbitration (and leave the litigation )

, the calculus for a stay may (or

may not ) change. Accordingly, we express no view on whether a stay of trial court proceedings

might be required under these new circumstances, assuming either side requests such relief after

the case is remanded.16 

### C ONCLUSION

W e reverse the trial court ’ s denial of the motion to compel arbitration in regard to

Highlands and Schultz

, but affirm denial of the motion in regard to Sabra

, and remand the case to

the trial court for further proceedings consistent with this opinion

.

JEFF ALLEY

, Chief Justice

May 1 7

, 2024

Before Alley

, C.J., Palafox and Soto, JJ.

Palafox, J., concurring and dissenting in part