Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-18-00527-CV

STAGG RESTAURANTS, LLC d/b/a McDonalds #24388,

Appellant

v.

Fred SERRA,

Appellee

From the 45th Judicial District Court, Bexar County, Texas

Trial Court No. 2014-CI-17438

Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Sandee Bryan Marion, Chief Justice

Rebeca C. Martinez, Justice

Luz Elena D. Chapa, Justice

Delivered and Filed: February 13, 2019

AFFIRMED

Stagg Restaurants, LLC d/b/a McDonald’s #24388 appeals an order denying its motion to 

compel arbitration. McDonald’s argues appellee Fred Serra’s personal injury claim falls within the 

scope of an enforceable arbitration agreement. Because McDonald’s failed to satisfy its burden to 

establish that Serra received notice of McDonald’s arbitration policy, we affirm the trial court’s 

order.
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PROCEDURAL BACKGROUND

In November 2014, Serra filed a lawsuit alleging McDonald’s negligence caused personal 

injury he sustained while at work. McDonald’s filed a motion to compel arbitration and an answer 

generally denying Serra’s allegations. McDonald’s also filed a brief, an affidavit, and exhibits in 

support of its motion to compel arbitration. 

According to supporting documents McDonald’s attached to its motion to compel, Serra 

received an occupational injury plan on July 19, 2013, containing an agreement to arbitrate 

disputes arising from personal injury sustained while on the job. In a sworn affidavit filed in 

response to the motion to compel, Serra stated he did not receive the occupational injury plan and 

was never notified about the arbitration provision. After the trial court heard and denied the motion, 

McDonald’s timely appealed. 

MOTION TO COMPEL ARBITRATION

The sole issue on appeal is whether the trial court erred by denying McDonald’s motion to 

compel arbitration. The arbitration agreement at issue provides the agreement is governed by the 

Federal Arbitration Act (FAA). “Under the FAA, 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 v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). “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, such as 

waiver.” Id. If the party seeking to compel arbitration does not meet this burden, then the party 

opposing the motion to compel need not prove an affirmative defense, such as waiver, to the 

provision’s enforcement. See id. 
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A. Standard & Scope of Review 

When parties file a motion to compel arbitration and a response, the “trial court may 

summarily decide whether to compel arbitration on the basis of affidavits, pleadings, discovery, 

and stipulations.” Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992). But when, as 

here, “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.” Id.

“We review a trial court’s order denying a motion to compel arbitration for abuse of 

discretion.” Henry, 551 S.W.3d at 115. “We defer to the trial court’s factual determinations if they 

are supported by evidence but review its legal determinations de novo.” Id. When, as here, the trial 

court does not make findings of fact and does not specify the basis for its order, we will infer the 

trial court made all findings necessary to support its order and we will affirm the order on any 

ground supported by the record. See Paragon Indus. Applications, Inc. v. Stan Excavating, LLC, 

432 S.W.3d 542, 549 (Tex. App.—Texarkana 2014, no pet.). 

B. Notice of the Arbitration Agreement

“An employer may enforce an arbitration agreement entered into during an at-will 

employment relationship if the employee received notice of the employer’s arbitration policy and 

accepted it.” In re Dallas Peterbilt, Ltd., L.L.P., 196 S.W.3d 161, 162 (Tex. 2006) (orig. 

proceeding) (per curiam). When determining whether an employee received notice of an 

arbitration policy, we consider all communications between the employer and employee, not 

merely the underlying agreement. Id. “Notice is a fact question,” and cases may “boil[] down to 

which version of facts the trial court credits.” Kmart Stores of Tex., L.L.C. v. Ramirez, 510 S.W.3d 

559, 569 (Tex. App.—El Paso 2016, pet. denied). 
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McDonald’s argues Serra is bound by the arbitration policy contained in its occupational 

injury plan. Serra did not sign McDonald’s occupational injury plan, but the arbitration policy

outlined within it provided that the arbitration policy was a mandatory condition of employment 

to which the employee automatically agreed when accepting and continuing employment with 

McDonald’s. “While this maneuver spares an employer from having to get an employee’s physical 

signature on an arbitration agreement as a prerequisite to arbitral forum access, this practice is not 

without risk, . . . .” Alorica v. Tovar, No. 08-18-00008-CV, 2018 WL 6167963, at *3 (Tex. App.—

El Paso Nov. 26, 2018, no pet. h.). “[R]elying on implied consent by notice can create potential 

fact issues on formation that can undermine an arbitration agreement’s validity more easily than 

would a physical signature indicating that an employee affirmatively assents to arbitration.” Id. 

In support of its motion to compel arbitration, McDonald’s produced the occupational 

injury plan, an affidavit from its business director George McClure, and copies of Serra’s 

employment documents. McClure swore in his affidavit that Serra received a copy of the 

occupational injury plan. Yet Serra’s employment documents did not include the occupational 

injury plan and none mention an arbitration agreement. One of the employment documents is titled 

“Initial Orientation,” and contains a list of documents, but again the occupational injury plan is not 

listed. Another employment document titled “Hiring Packet Checklist” contains another list of 

other employment-related documents, but the occupational injury plan is again not listed. On the 

Hiring Packet Checklist, Serra initialed next to the HIPAA Authorization and “Authorization for 

Initial Treatment and Prescription Services” forms, indicating he had read and understood those

forms. The Authorization for Initial Treatment and Prescription Services form, which is signed 

only by a McDonald’s representative and not Serra, states: “You are authorized to provide 

medically necessary treatment and/or prescription services, subject to the terms of the Employer’s 

occupational injury plan for conditions related to the reported injury.” Although the form mentions 
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the occupational injury plan, the form does not state whether Serra received a copy of the plan, 

indicate whether Serra agreed to the plan, or mention the arbitration agreement contained in the 

plan. Similarly, the HIPAA Authorization form refers to the occupational injury plan, but does not 

state whether Serra received a copy of the plan, indicate whether Serra agreed to the plan, or 

mention the arbitration agreement contained in the plan. Serra produced his affidavit in his 

response, swearing he did not receive a copy of the occupational injury plan and was never notified 

about the arbitration provision. 

None of Serra’s employment documents show that Serra agreed to or had notice of the 

arbitration policy in the occupational injury plan. Although two of Serra’s employment documents 

refer to the occupational injury plan, none of the documents state whether Serra received a copy 

of the plan, indicate whether Serra agreed to the plan, or mention the arbitration agreement 

contained in the plan. McDonald’s only evidence showing that Serra was notified about the 

arbitration policy in the occupational injury plan was McClure’s affidavit. But McClure’s affidavit 

testimony was discredited by Serra’s employment documents, which do not list the occupational 

injury plan among the forms and policies that Serra received at the initial orientation or within his 

hiring packet. Furthermore, although McClure swore in his affidavit that Serra received the 

occupational injury plan and was notified about the plan’s arbitration policy, Serra swore in his 

affidavit that he did not receive the occupational injury plan and was not notified about the plan’s 

arbitration policy.

Because the motion to compel arbitration and the response presented conflicting evidence 

as to whether Serra received notice of the arbitration policy, McDonald’s had the burden to prove 

at an evidentiary hearing that Serra received notice of the arbitration policy. See Jack B. Anglin 

Co., 842 S.W.2d at 269; MP Ventures of S. Tex., Ltd., 276 S.W.3d at 529. At the hearing on 

McDonald’s motion to compel arbitration, McDonald’s presented no further evidence. See Vireo, 
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P.L.L.C. v. Cates, 953 S.W.2d 489, 490–91 & n.3 (Tex. App.—Austin 1997, pet. denied)

(summarily overruling challenge to sufficiency of the evidence when trial court denied motion to 

compel arbitration when no evidence was received at hearing). Given the absence of evidence at 

the hearing on McDonald’s motion to compel arbitration and the conflicting evidence produced in 

support of McDonald’s motion, and Serra’s response, we cannot say the trial court abused its 

discretion by denying McDonald’s motion to compel arbitration. See Henry, 551 S.W.3d at 115; 

Alorica, 2018 WL 6167963, at *3; Kmart Stores, 510 S.W.3d at 569.

CONCLUSION

McDonald’s failed to satisfy its burden to establish that Serra agreed to the arbitration 

policy it asked the trial court to enforce. Because McDonald’s did not meet this burden, Serra was 

not required to establish an affirmative defense, such as waiver, to the provision’s enforcement. 

See Henry, 551 S.W.3d at 115. We therefore need not address McDonald’s issue regarding waiver. 

We affirm the trial court’s order denying McDonald’s motion to compel arbitration. 

Luz Elena D. Chapa, Justice