## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 14 - 00249 - CV
BRAND FX, LLC D/B/A BRAND FX BODY COMPANY APPELLANT

V. CURTIS RHINE APPELLEE

---------- FROM THE 271ST DISTR ICT COURT OF WISE CO UNTY TRIAL COURT NO. CV14

- 05
- 321

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### OPINION

---------- In this interlocutory appeal, a ppellant Brand FX, LLC appeals from the trial court’s order denying its motion to compel arbitration and later motio n to reconsider. We reverse the trial court’s order and remand for entry of an order compelling arbitration

.2 I. BACKGROUND A. E MPLOYMENT WITH B RAND FX Appellant Brand FX , LLC is “a Delaware limited liability company” that is publicly traded. Brand FX designs, produces, markets, and sells utility truck bodies and touts revenues of $75,000,000

. On October 4, 2013, Brand FX hired appellee Curtis Rhine as its chief financial officer. On November 6, 2013, R hine signed an employment contract with Brand FX, which set out Brand FX’s performance expectations, provided for severance pay if Rhine was fired “for any reason other than [c]ause,” and mandated that any employment disputes would be su bject to arbitration. The arbitration clause provided: Any dispute related to your employment, performance, or compensation shall be resolved exc lusively through arbitration, held in New York, New York by and in accordance with the rules of the American Arbitration Association. Decisions of the arbitrator shall be in accordance with applicable state law and not based upon the principle of ex - aequo et bono

. [ 1 ] The arbitrator shall state the reasons for any award and shall not have the power to amend or modify this agreement. The unsuccessful party shall pay all costs of arbitration, including costs of the other party. On November 27, 2013, Rhine entered into a separate subscription agreement with Brand FX under which Rhine was able to buy publicly

- traded Brand FX stock and acquire a 1% interest in Brand FX. On February 13, 2014, Brand FX’s chief executive officer and Rhine’s immediate superviso r, Art De St. Aubin, informed Rhine by letter of “concerns

1 This doctrine allows a decision

- maker to decide issues under equitable principles instead of legal rules. Black’s Law Dictionary 679

– 80 (10th ed. 2014).3 with respect to [Rhine’s] employment ,” delineated several instances of “ willful misconduct, ” and offered Rhine “ an opportunity to cure ” (the notice letter). De St. Aubin warned Rhine that if he fa iled to improve within thirty days, he would be fired for cause as prov ided in the employment contract . On March 17, 2014, Brand FX fired Rhine for cause. B. U NDERLYING S UIT , D EFAULT , AND M OTION TO C OMPEL A RBITRATION Rhine filed suit against Brand FX, alleging that Brand FX (1) committed “statutory libel per se” by asserting in the notice letter that Rhine committed willful misconduct and (2 ) b reached the employment contract by failing to provide a cure period in good faith, falsely asserting his term ination was for cause, and failing to give him severance pay. After Brand FX failed to timely answer, Rhine moved for default judgment as to Brand FX’s liability

. See Tex. R. Civ. P. 239. The trial court granted the motion for default judgment and set a hearing for July 17, 2014 to hear evidence regarding Rhine’s unliquidated damages. See Tex. R. Civ. P. 243. On July 15, 2014, Brand FX filed a motion to compel arbitration and also sought to have the default judgment set aside and a new trial ordered. In its motion to compel, Brand FX raised the arbitration provision in the employment contract , asserted that Rhine’s claims fell within the scope of the agreement, and sought arbitration “to the American Arbitration Association consistent w ith the terms of [the arbitration ] agreement.” The trial court set a nonevidentiary hearing on Brand FX’s motions for July 28, 2014.4 Rhine filed a response to Brand FX’s motion to compel on July 25, 2014, three days before the hearing. Rhine asserted that the arbitra tion clause was unenforceable because Brand FX waived its right to arbitrate and because the agreement was substantively unconscionable. Although Rhine served the response on Brand FX by certified mail, Brand FX did not receive the response until after th e hearing and the trial court’s ruling. At the July 28 hearing, Rhine asserted for the first time that the arbitration clause was governed by the Texas Arbitration Act (the TAA) and not the Federal Arbitration Act (the FAA). The distinction was importa nt because under the TAA, a personal

- injury claim may not be subject to an arbitration agreement unless the party’s attorney signs the arbitration agreement. See Tex. Civ. Prac. & Rem. Code Ann. § 171.002 (West 2011). Rhine also argued that the agreement was unconscionable and that Brand FX had waived arbitration. Brand FX asserted that the agreement was governed by the FAA because of its ac tivities involving interstate commerce and that it had not waived its right to arbitrate

. At the hearing, the tria l court denied the motion to compel but set aside the default judgment. C. M OTION TO R ECONSIDER On August 5, 2014, Brand FX filed a mo tion to reconsider the denial to allow the trial court to “address [Rhine’s] arguments” raised a t the hearing and incl uded in Rhine's response , which Brand FX received after the hearing and the trial court’s ruling

. Brand FX attached De St. Aubin’s affidavit, which expounded5 upon Brand FX’s activities involving interstate commerce and averred that Rhine’s duties included supervising Brand FX’s financial activities in Brand FX’s manufacturing locations in Iowa, Indiana, Minnesota, and Texas. Brand FX more fully responded to Rhine’s waiver argument and addressed whether the agreement was substantively unconscionable. In i ts prayer for relief, Brand FX requested that the trial court grant the motion to reconsider, abate Rhine’s case, and “order [Rhine] to submit his claims to the American Arbitration As s ociation consistent with the terms of their agreement.” The trial cour t set a nonevidentiary hearing on Brand FX’s motion to rec onsider for August 11, 201 4

. Rhine responded to the motion to reconsider on August 7, 2014, and asserted that any evidence filed in support of the motion to reconsider that was not part of the tria l court’s initial determination could not be taken into account on reconsideration. Rhine then asserted that because there was no evidence supporting an interstate

- commerce connection, the TAA applied; thus, his defamation claim was not subject to the arb itration agreement. Finally, Rhine contended t hat the agreement was unconscion able, violated the rules of the American Arbitration Association (the AAA) , and was waived. In addition, Rhine filed a motion to strike Brand FX’s new evidence

— namely, De St. A ubin’s affidavit

— submitted with its motion to reconsider. At the hearing, Brand FX expounded on its arguments that the FAA applied, and Rhine asserted that no new evidence on the issue could be considered. Brand FX argued that its motion to reconsider was necessary6 because it was “unaware that [Rhine] w as going to argue that the [TAA] applied.” Brand FX again raised its argument that the arbitration agreement was enforceable and that Rhine’s claims fell within its scope. On August 15, 2014, the trial court denied Brand FX’s motion to reconsider but did not rule on Rhine’s motion to strike. On August 18, 2014, Brand FX filed a notice of appeal from the order denying its motion to compel and from the order denying its motion to reconsider. In a sole is sue, Brand FX as serts that the trial court abused its discretion by failing to compel arbitration. II. DISCUSSION A. S COPE OF O UR R EVIEW Rhine asserts that we may not consider the evidence Brand FX submitted with its motion to reconsider to support it s argument that the FAA applied. Indeed, Rhine has filed a motion to strike “any untimely evidence” from the clerk’s record. Rhine bases his argument on the fact that an interlocutory appeal from a motion to reconsider the denial of a motion to compel is not statutorily authorized. Thus, Rhine posits that any filings relating to the motion to reconsider are not properly part of this appeal, which is only authorized as to the denial of the motion to compel. We conclude that striking properly filed tria l court documents from the clerk’s record would be inappropriate. Any document that was filed in the trial court is subject to designation in the clerk’s record. See generally Tex. R. App. P. 34.5. But our scope of review is not determined by a document ’s inclusion in7 the clerk’s record. See In re C.A.K. , 155 S.W.3d 554, 559 (Tex. App.

— San Antonio 2004, pet. denied) (refusing to strike items from clerk’s record and noting “inclusion of a document in the clerk’s record does not necessarily mean it is rel evant to the merits of the appeal”); Roventini v. Ocular Sciences, Inc. , 111 S.W.3d 719, 726 (Tex. App.

— Houston [1st Dist.] 2003, no pet.) (recognizing filing of supplemental clerk’s record does not compel consideration of its contents). If we may appropr iately consider a document in the clerk’s record as part of our authorized review of a trial court’s order or judgment, we will. And the converse is true as well

. See generally Hon. Deborah Hankinson & Rick Thompson, Standards and Scope of Review , 29 The Advocate (Tex.) 6, 6 (2004) (“The scope of review, as the name suggests, delineates the portion of the appellate record that an appellate court may consider in deciding whether the trial court erred and whether that error warrants reversal.”). Therefore, we deny Rhine’s motion to strike portions of the clerk’s record. But we are still left with the question of whether the evidence Rhine submitted to the trial court in support of its motion to reconsider should be considered in our review of the trial co urt’s denial of arbitration. 2 Interlocutory orders may be appealed only if permitted by statute and only to the extent jurisdiction is conferred by statute. Jack B. Anglin Co. v. Tipps , 842 S.W.2d 266,

2 Rhine does not ar gue that Brand FX failed to timely file its notice of appeal; thus, our jurisdiction is not at issue. Rhine only asserts that the legislature’s limited grant of appellate jurisdiction over interlocutory appeals affects the scope of our review, not our jur isdiction in this instance

.8 272 (Tex. 1992) (orig. proceeding). We strictly con strue statutes authorizing interlocutory appeals because they are a narrow exception to the general rule that interlocutory orders are not immediately appealable. CMH Homes v. Perez , 340 S.W.3d 444, 447

– 48 (T ex. 2011); 3 Roy W. McDonald & Elaine Carlson, Texas Civil Practice § 19:56 (2d ed. 2000 & Supp. 2013

– 14). Under both the FAA and the TAA, the denial of a motion to compel arbitration is immediately appealable, but the de nial of a motion to reconsider the denial of a motion to compel arbitration is no t immediately appealable

. See 9 U.S.C.A. § 16 (West 2009); Tex . Civ. Prac. & Rem. Code Ann. § 51.016 (West 2015) , § 171.098 (West 2011) ; Nazareth Hall Nursing Ctr. v. Castro , 374 S.W.3d 590, 593

– 94 (Tex. App.

— El Paso 2012, no pet.); AXA Fin., Inc. v. Robe rts , No. 03

- 07
- 00079
- CV, 2007 WL 2403210, at *3 (Tex. App.

— Austin Aug. 23, 2007, no pet.) (mem. op.)

. We conclude that we may not consider any new evidence submitted in support of Brand FX’s motion to reconsider. Although we have jurisdiction over this appeal because Brand FX filed its notice of appeal within twenty days after the trial court denied its motion to compel, w e may not review the denial of the

mo tion to reconsider . Our statutory authorization does not extend to such orders under either the FAA or the TAA

. See 9 U.S.C.A. § 16; Tex. Civ. Prac. & Rem. Code Ann. §§ 51.016, 171.098. In its motion to reconsider, Brand FX requested the sam e relief and relied on the same arbitration agreement that it had included in its motion to compel. See Naz areth Hall , 374 S.W.3d at 594 (concluding9 interlocutory appeal from denial of motion to reconsider not authorized under the FAA because motion to reconsider based on same arbitration agreement which was subject of motion to compel); cf. Lucchese, Inc. v. Solano , 388 S.W.3d 343, 348

– 49 (Tex. App.

— El Paso 2012, no pet.) (holding interlocutory appeal from amended motion to compel authorized under the FAA because amended motion to compel was based on separate and different arbitration agreement than agreement relied on in original motion to compel; thus, amended motion was not a disguised motion to reconsider). Further, the arguments Brand FX raised to the trial court at the hearing on its motion to compel were again included in its motion to reconsider. Ther efore, because an interlocutory appeal is not authorized from the denial of a motion to reconsider in these circumstances, we will not consider any new evidence submitted in support of Brand FX’s motion to reconsider. Cf. Lopez v. Casa Pontiac GMC Buick, Inc. , No. 14

- 11
- 00001
- CV , 2011 WL 5926683, at *4 (Tex. App.

— Houston [14th Dist.] Nov. 29, 2011, no pet.) (mem. op.) (holding affidavit filed af ter motion to compel denied, which raised unconscionability defense to arbitration, could not be considered as ev idence supporting the defense)

. Brand FX h eavily relies on a mandamus opinion from the Texas Supreme Court in which the supreme court considered evidence submitted in support of a motion to reconsider the denial of a motion to compel and concluded that th e FAA applied to an arbitration agreement. In re Nexion Health at Humble, Inc. , 173 S.W.3d 67, 68 (Tex. 2005) (orig. proceeding). In Nexion , however, the10 supreme court merely determined that Nexion did not waive its right to arbitration under the FAA mer ely because it raised the application of the FAA for the first time in its motion to reconsider. Id. at 68

– 69. The Nexion court was not faced with statutory authorization to review the denial of a motion to reconsider the ruling on a motion to compel arb itration and whether that statutory authorization extend ed to a review of a denial of a motion to reconsider . Indeed, interlocutory appeals from the denial of a motion to compel were not authorized until 2009. See In re Santander Consumer USA, Inc. , 445 S.W.3d 216, 218 (Tex. App.

— Houston [1st Dist.] 2013, orig. proceeding). Thus, Nexion is inapplicable to the procedural posture of this appeal. B
. FAA OR TAA? Brand FX argues that the FAA applied to the trial court’s determination of the enforceability of the arbitration agreement. Rhine contends that because Brand FX did not meet its burden to prove application of the FAA, the TAA applies. As we stated before, this distinction is impo rtant because it determines which claims are subject to the arbitrat ion agreement

. See Tex. Civ. Prac. & Rem. Code Ann. § 171.002. The FAA applies to any contract that contains a written agreement to arbitrate, covers a dispute at issue, and involves interstate commerce. See 9 U.S.C.A. § 2; Tex. Echo Land & Cattle, LLP v. Gen. Steel Domestic Sales, LLC , No. 02

- 12
- 00372
- CV, 2013 WL 3064513, at *1 (Tex. App.

— Fort Worth June 20, 2013, no pet.) (mem. op.). Rhine argues that the TAA applies to the11 enforceability of the arbitration agreement because Brand FX failed to carry its b urden to show that the contract involved interstate commerce. Because the arbitration agreement at issue did not explicitly state that the FAA or the TAA applies, Brand FX bore the burden to show that the FAA governed the arbitration agreement. See IKON Office Solutions, Inc. v. Eifert , 2 S.W.3d 688, 696 (Tex. App.

— Houston [14th Dist.] 1999, no pet. & orig. proceeding ). This burden is not onerous and is satisfied with evidence that the contract in fact has some link to interstate commerce. See Wee Tots Pediatrics, P.A. v. Morohunfola , 268 S.W.3d 784, 789

– 90 (Tex. App.

— Fort Worth 2008, no pet. & orig. proceeding ) ; Palm Harbor Homes, Inc. v. McCoy , 944 S.W.2d 716, 719

– 20 (Tex. App.

— Fort Worth 1997, orig. proceeding)

. “Commerce under the [FAA] is broadly c onstrued and the amount of commerce considered in the contract need not be substantial.” In re Chevron U.S.A., Inc. , 419 S.W.3d 329, 336 (Tex. App.

— El Paso 2010, orig. proceeding [mand. denied]). In the employment context, the “relationship between an e mployer who is regularly engaged in activities related to interstate commerce and its employees is affected by interstate commerce as a matter of law and implicates commerce clause issues.” In re Big 8 Food Stores, Ltd. , 166 S.W.3d 869, 880 (Tex. App.

— El Paso 2005, orig. proceeding). The evidence before the trial court when it decided Brand FX’s motion to compel showed that Brand FX was incorporated in Delaware with its principal place of business in New York

. See Jack B. Anglin , 842 S.W.2d at 270 (holdi ng court may consider pleadings and any other12 evidence before the trial court at the time of the motion to compel arbitration to determine whether a contract affects interstate commerce). Bran d FX designs, manufactures, produces , and sells composite (as o pposed to steel) utility truck bodies , toppers, and inserts . The trucking industry is commonly known to involve interstate commerce. Cf. For g ed Components, Inc. v. Guzman , 409 S.W.3d 91, 98 (Tex. App.

— Houston [1st Dist.] 2013, no pet.) (holding manufactu rer of steel for the oil

- and

- gas industry was engaged in interstate commerce for purposes of the FAA); Chevron , 419 S.W.3d at 336 (concluding arbitration agreement governed by the FAA because claims to be arbitrated concerned the oil

- and

- gas industry , which involves interstate commerce as “a matter of common knowledge”). Although Rhine was hired to work out of Brand FX’s office in Texas, Rhine’s position as CFO required him to oversee Brand FX’s financial oper ations at all its locations . Brand FX’s “Operating Partner” who offered Rhine the job with Brand FX was located in New York. Rhine’s employment w ith Brand FX provided for Rhine’s ability to purchase a percentage ownership interest in Brand FX, a publicly

- traded corporation

. We conclude that these facts established as a matter of law that the parties’ contract affected or involved interstate commerce; thus, the arbitration agreement was governed by the FAA. 3 See, e.g. , C apital Income Props.

– LXXX

3 As a result, the arbitration agreement governed Rhine’s personal

- injury claim

— statutory libel per se

— even though not signed by Rhine’s attorney. See In re Macy’s Tex., Inc. , 291 S.W.3d 418, 419 (Tex. 2009) (orig. proceeding) . The13 v. Bla ckmon , 843 S.W.2d 22, 23 (Tex. 1992) (ori g. proceeding); Forged Components , 409 S.W.3d at 98 ; Am. Med. Techs., Inc. v. Miller , 149 S.W.3d 265, 269 (Tex. App.

— Housto n [14th Dist.] 2004, no pet. & orig. proceeding )

. Accordingly, we will review the trial court’s factual and legal determinations reg arding the enforceability of the arbitration agreement under the dictates of the FAA. C. S TANDARD OF R EVIEW We review the denial of a motion to compel arbitration for an abuse of discretion. Garcia v. Huerta , 340 S.W.3d 864, 869 (Tex. App.

— San Antonio 2 011, pet. denied). See generally 6 Roy W. McDonald & Elaine Carlson, Texas Civil Practice § 44:19[a] (2d ed. rev. 2014) (discussing appellate standard of review regarding arbitration issues). In this review, we defer to a trial court’s factual findings i f they are supported by the evidence but accord no deference to a trial court’s resolution of questions of law. Perry Homes v. Cull , 258 S.W.3d 580, 598 (Tex. 2008) , cert. denied , 555 U.S. 1103 (2009)

. Whether there is a valid and enforceable arbitration agreement i s a legal question subject to de novo review. Id. ; Garcia , 340 S.W.3d at 869. Once the party seeking to compel arbitration proves that a valid arbitration agreement exists, a strong presumption in favor of arbitration arises and the burden sh ifts to the party resisting arbitration to establish a defense to enforcing arbitration. FAA preempts the TAA’s signature requirement for personal

- injury claims. Nexion , 173 S.W.3d at 69.14 Whether the party resisting arbitration has establ ished a defense to arbitration

— such as waiver or unconscionability

— is a legal issue also subject to de novo review. In re Poly

–

Am., L.P. , 262 S.W.3d 337, 348 (Tex. 2008) (orig. proceeding); Perry Homes , 258 S.W.3d at 598; Delfingen US

– Tex., L.P. v. Valenzuela , 407 S.W.3d 791, 798 (Tex. App.

— El Paso 2013, no pet.). The determination of any facts relevant to a defense , however, is a question of fact for the trial court, which we review deferentially for record support. Delfingen , 407 S.W.3d at 798

– 800. If an arbitration agreement is present, the claims are encompassed by the a greement, and the party opposing arbitratio n failed to prove any defense to enforcement , the trial court has no discretion but to compel arbitration. See In re FirstMerit Bank, N.A. , 52 S.W.3d 749, 753

– 54 (Tex. 2001) (orig. proceeding). In other words, a trial court that refuses to compel arbitra tion under a valid and enforceable arbitration agreement has abused its discretion. In re Odyssey Healthcare, Inc. , 310 S.W.3d 419, 422 (Tex. ) (orig. proceeding) , cert. denied , 131 S. Ct. 319 (2010)

. D. E NFORCEABILITY OF A RBITRATION A GREEMENT Rhine doe s not assert that he and Brand FX did not enter into an arbitration agreement or that his claims do not fall within the scope of the arbitration agreement under the FAA . Rhine contends that the arbitration agreement is unenforceable because Brand FX waive d its right to seek arbitration and the agreement itself w as substantively unconscionable

.15 1. Waiver Rhine argues that Brand FX waived the right to compel arbitration by substantially invoking the judicial process. Rhine asserts that by moving for a

n ew trial and by failing to move for arbitration before its liability was established, Brand FX substantially invoked the judicial process to Rhine’s detriment and, thus, waived its right to arbitration. A p arty waives an arbitration provision when it subs tantially invokes the judicial process to the other party’s detriment. In re Bank One, N.A. , 216 S.W.3d 825, 827 (Tex. 2007) (orig. proceeding) . “[T]here is a st rong presumption against waiver, ” and even if present, it must be intentional. EZ Pawn Corp. v. Mancias , 934 S.W.2d 87, 89 (Tex. 1996) (writ of error & orig. proceeding)

. The Texas Supreme Court has explicitly held that a party does not substantially invoke the judicial process by moving to set aside a default judgment and requesting a new trial

. Bank One , 934 S.W.2d at 827; see also Paul Jacobs, P.C. v. Encore Bank, N.A. , No. 01

- 12
- 00699
- CV, 2013 WL 3467197, at *4 (Tex. App.

— Houston [1st Dist.] July 9, 2013, no pet.) (mem. op.) (collecting cases regarding what actions are not considered substan tial invocation). We can hold no differently here and therefore conclude that Brand FX did not substantially invoke the judicial process such that it wa ived its right to compel arbitration. Rhine failed to meet his burden to establish waiver. 2. Unconsc ionability Rhine next argues that the arbitration agreement was substantively unconscionable because it potentially would shift the costs of the arbitration to16 Rhine if he lost, New York is not an appropriate forum, and the arbitrator does not have the ab ility to modify the agreement

. As we previously stated,

u nconscionability is a question of law that we review de novo, while deferring to the trial court’s discretion to determine the facts relevant to the issue. See Whataburger Restaurants LLC v. Cardwe ll , 446 S.W.3d 897 , 908 (Tex. App.

— El Paso , 2014, pet. filed ). Rhine’s unconscionability arguments raise the gross one

sidedness of the agreement’s terms. See Olshan Found. Repair Co. v. Ayala , 180 S.W.3d 212, 215 (Tex. App.

— San Antonio 2005, pet . denied). We conclude that Rhine failed to meet his burden to prove his defenses to enforcement of the arbitration agreement; thus, the trial court’s contrary conclusion on these issue s of law was an abuse of discretion. Rhine first contends that the cost
- shifting provision renders the agreement unconscionable. Although excessive costs of arbitration may in certain circumstances render an arbitration agreement substantively unconscionable, t he potential for shifting costs , standing alone, does not ren der an arbitration agreement unconscionable. FirstMerit Bank , 52 S.W.3d at 757; Lawson v. Archer , 267 S.W.3d 376, 384 (Tex. App.

— Houston [14th Dist.] 2008, no pet. & orig. proceeding); In re Weeks Marine, Inc. , 242 S.W.3d 849, 859

– 60 (Tex. App.

— Houston [1 4th Dist.] 2007, orig. proceeding [mand. denied]). There is no evidence in the record to suppo rt the amount of potential costs or Rhine’s inability to pay those pot ential costs should he lose . Rhine failed to establi sh that the cost

- shifting provision re ndered the agreement unconscionable. See Green17 Tree Fin. Corp. v. Randolph , 531 U.S. 79, 92, 121 S. Ct. 513, 522 (2000); Pilot Travel Ctrs., LLC v. McCray , 416 S.W.3d 168, 181

– 82 (Tex. App.

— Dallas 2013, no pet.) ; G.T. Leach Builders, L.L.C. v. TCMS, Inc. , No. 13

- 11
- 310
- CV, 2012 WL 506568, at *5

– 6 (Tex. App.

— Corpus Christi Feb. 16, 2012, no pet.) (mem. op.); cf. Olshan Fou nd. , 180 S.W.3d at 215

– 16 (holding evidence of amount of AAA’s fees combined with plaintiff’s testimony that he could not pay the fees

es tablished arbitration agreement was unconscionable)

. As part of his unconscionability argument based on cost shifting, Rhine asserts that the applicable arbitration rules

— the rules of the AAA

— prohibit the shifting of fees onto the losing party. As pointe d out by Brand FX, the AAA rule relied on by Rhine solely addresses arbitrator expenses and does not expressly prohibit other cost shifting between the parties. Further, Rhine’s failure to submit any evidence support ing his argument that the cost shifting would be unfair or unreasonably one

- sided is fatal to his unconscionability argument. See Whataburger , 446 S.W.3d at 912

– 13 (holding no evidence admitted to show AAA fees and costs specifically applicable to arbitration; thus, trial court erred by conclu ding agreement unconscionable); Shamrock Foods Co. v. Munn & Assocs., Ltd. , 392 S.W.3d 839, 848

– 50 (Tex. App.

— Texarkana 2013, no pet.) ( holding trial court erred by concluding agreement was substantively unconscionable because no evidence showed costs of a rbitration would be prohibitively expensive)

. See generally 7 Tex. Jur. 3d Arbitration & Award § 26 (2013 ) (discussing considerations courts use to determine if agreement18 unconscionable based on excessive cost and noting employee must present supporting e vidence). Rhine next argues that the choice of forum in the agreement

— New York

— renders the agreement unconscionable because New York is not a n adequate and accessible substitute to litigation. His argument solely rests on the increased expenses involved if all parties and witnesses were required to travel to New York to arbitrate the dispute. Again, it was Rhine’s burden to prove the likelihood of incurring such costs and to provide some specific information concerning those potential costs. See Odyssey Healthcare , 310 S.W.3d at 422; Poly

–

Am. , 262 S.W.3d at 356. “[T]he ‘risk’ that [a claimant] will be saddled with prohibitive costs is too speculative to justify the invalidation of an arbitration agreement.” Green Tree , 531 U.S. at 91, 121 S. Ct. at 522 . Other than Rhine’s conclusory assertions that he might incur substantial costs and expenses if all parties and witnesses are located outside of New York and if he fails to prevail, there is no record evidence showing what the costs would be or that thos e costs would consume his potential recovery

. Rhine failed to carry his burden to show the forum

- selection clause in the arbitration agreement was unconscionable. See Odyssey Healthcare , 310 S.W.3d at 422. In his final argument, Rhine asserts that the a greement is unconscionable because the arbitrator does not have the discretion to amend or modify the agreement. We can find no case law supporting Rhine’s assertion that a limitation on the authority of the arbitrator, which does not preclude the arbitra tor19 from interpreting the parties’ agreement and applying it to the facts of the dispute, renders an arbitration agreement unconscionable. Although Rhine cites Poly

– America in support of his assertion, that case merely provided that because the contract a t issue allowed the arbitrator to modify unconscionable terms, the cost

spli tting provision could not be found unconscionable. Poly

–

Am. , 262 S.W.3d at 357. We do not read Poly

–

America to require a conclusion that all agreements not giving the arbitrator discretion to modify the agreement are unconscionable as a matter of law. Further, this argument is predicated on Rhine’s assertion that the cost provisions are unconscionable, rendering the lack of arbitrator discretion to modify the cost provisions like wise unconscionable. We already have concluded that Rhine failed to carry his burden to show that the cost provisions were unconscionable; therefore, his lack

- of

- discretion assertion fails as well. III. CONCLUSION Although we did not consider any evid ence submitted in support of Brand FX’s motion to reconsider, we conclude that Brand FX showed that its employment contract with Rhine affected interstate commerce such that the FAA applies to the arbitration agreement. Brand FX met its burden to show the existence of a valid arbitration agreement between the parties; however, Rhine failed to meet his burden to prove h is defenses against enforcing the otherwise valid arbitration provision. See FirstMerit Bank , 52 S.W.3d at 756. Thus, the trial court clea rly abused its discretion by failing to compel arbitration. See Odyssey20 Healthcare , 310 S.W.3d at 422. We sustain Brand FX’s issue on appeal, reverse the trial court’s order denying Brand FX’s motion to compel arbitration, and remand to the trial court f or entry of an order compelling the parties’ dispute to arbitration pursuant to the parties’ arbitration agreement

. See Tex. R. App. P. 43.2(d), 43.3(a); IHS Acquisition No. 171 v. Beatty

- Ortiz , 387 S.W.3d 799, 810 (Tex. App.

— El Paso 2012, no pet.).

/s/ Lee Gabriel L EE GABRIEL JUSTICE PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ. DELIVERED: February 26, 2015