IN THE

TENTH COURT OF APPEALS

No. 10-16-00408-CV

T&T ROCK DISTRIBUTION, LLC,

Appellant

v.

RUTILIO I. VELASCO,

Appellee

From the 413th District Court

Johnson County, Texas

Trial Court No. DC- C201600551

MEMORANDUM OPINION

In eleven issues, appellant, T&T Rock Distribution, LLC, complains about the trial 

court’s denial of its motion to compel arbitration and stay litigation proceedings. We 

affirm.

I. BACKGROUND

In his original petition, appellee, Rutilio I. Velasco, alleged that he sustained lifealtering injuries as a result of an incident that occurred at “the Yard, which was owned, 
T&T Rock Distrib., LLC v. Velasco Page 2

possessed, managed, operated and/or controlled by one of more of the Defendants.”1 

Specifically, while working for appellant, Velasco was standing on the conveyor belt of a 

Superior Telestacker machine while the machine was turned off, attempting to resolve an 

issue with the machine. However, another worker turned the conveyor belt of the 

machine on while Velasco was still standing on it or near it, which caused Velasco to be 

thrown to the ground thirty feet below. As a result of the incident, Velasco asserted that 

he sustained “multiple broken bones, punctured organs, and damage to his head, neck, 

and face. Mr. Velasco’s diagnosis is still ongoing.” And because of these injuries, Velasco 

asserted premises-liability and negligence claims against appellant. 

Among other things, appellant filed an original answer denying the allegations 

contained in Velasco’s original petition, as well as a motion to compel arbitration and 

stay litigation proceedings. In its motion to compel arbitration, appellant contended that 

Velasco signed an arbitration agreement, which waived his right to initiate or prosecute 

a lawsuit and required the arbitration of claims, including tort claims and claims arising 

from work-related injuries. Appellant also asserted that Velasco’s injuries were covered 

under the arbitration agreement and that the Federal Arbitration Act applied in this case. 

Attached to appellant’s motion to compel arbitration were copies of the arbitration 

 

1

In addition to T&T Rock, KTI Incorporated, Johnson County Pipe, Inc., and Kenneth M. 

Thompson, LLC were sued by Velasco. All of these parties filed a joint notice of appeal in this case; 

however, KTI, Johnson County Pipe, and Kenneth M. Thompson LLC filed motions to dismiss their 

appeals, which we have granted.
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agreement—one in English, which was not signed by Velasco, and what appellant refers 

to as a Spanish version of the arbitration agreement that was signed by Velasco. Velasco 

responded to appellant’s motion to compel arbitration arguing that “there is no 

enforceable arbitration agreement in place,” among other things.

Ultimately, after a hearing, the trial court denied appellant’s motion to compel 

arbitration and stay litigation proceedings. This accelerated, interlocutory appeal 

followed. See TEX. R. APP. P. 28.1(a); TEX. CIV. PRAC. & REM. CODE ANN. § 51.016 (West 

2015).

II. APPLICABLE LAW

“Generally, we review a trial court’s decision to grant or deny a motion to compel 

arbitration under an abuse of discretion standard.” Enter. Field Servs., LLC v. TOC-Rocky 

Mountain, Inc., 405 S.W.3d 767, 773 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). 

Under this standard, we defer to a trial court’s factual determinations if they are 

supported by evidence; however, we review a trial court’s legal determinations de novo. 

In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). Whether a 

valid arbitration agreement exists and whether the arbitration agreement is ambiguous 

are questions of law that we review de novo. In re D. Wilson Constr. Co., 196 S.W.3d 774, 

781 (Tex. 2006) (orig. proceeding).

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

enforceable arbitration agreement and that the claims at issue fall within that agreement’s 
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scope. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding). 

If the movant establishes that an arbitration agreement governs the dispute, the burden 

shifts to the party opposing arbitration to establish a defense to the arbitration agreement. 

In re Provine, 312 S.W.3d 824, 829 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding) 

(citing In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999) (orig. 

proceeding)). Once the movant established a valid arbitration agreement covering the 

claims at issue, a trial court has no discretion to deny the motion to compel arbitration 

unless the opposing party proves a defense to arbitration. Id. (citing In re FirstMerit Bank, 

N.A., 52 S.W.3d 749, 753-54 (Tex. 2001) (orig. proceeding)).

Because state and federal policies favor arbitration, courts must resolve any doubts 

about an arbitration agreement’s scope in favor of arbitration. In re FirstMerit Bank, N.A., 

52 S.W.3d at 753. To be subject to arbitration, the “allegations need only be factually 

intertwined with arbitrable claims or otherwise touch upon the subject matter of the 

agreement containing the arbitration provision.” In re B.P. Am. Prod. Co., 97 S.W.3d 366, 

371 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding). However, no presumption 

of arbitrability arises until the court has found there is an enforceable arbitration 

agreement. In re Jebbia, 26 S.W.3d 753, 756-57 (Tex. App.—Houston [14th Dist.] 2000, orig. 

proceeding).
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III. ANALYSIS

In its first ten issues, appellant makes numerous arguments to show that the trial 

court abused its discretion by denying appellant’s motion to compel arbitration and stay 

litigation proceedings. Among the arguments made by appellant on appeal are that a 

valid arbitration agreement exists; that Velasco’s claims fit within the scope of the 

agreement; that consideration exists to support the agreement; and that the Federal 

Arbitration Act applies to this agreement. At the outset, we will address the argument 

made by Velasco in the trial court and on appeal that appellants cannot rely on an 

unsigned arbitration agreement. 

Though public policy favors the arbitration of disputes, arbitration is also a 

creature of contract. See In re Big 8 Food Stores, Ltd., 166 S.W.3d 869, 876 (Tex. App.—El 

Paso 2005, orig. proceeding) (citing Am. Heritage Life Ins. Co. v. Lang, 321 F.3d 533, 537 (5th 

Cir. 2003); Ysleta Indep. Sch. Dist. v. Godinez, 998 S.W.2d 700, 702 (Tex. App.—El Paso 1999, 

no pet.)). As such, a party cannot be compelled to arbitrate a dispute unless he has agreed 

to do so. Id. (citing Lang, 321 F.3d at 537). Furthermore, under standard contract 

principles, the presence or absence of signatures on a written contract is relevant to 

determining whether the contract is binding on the parties. Id. (citing In re Bunzi USA, 

Inc., 155 S.W.3d 202, 209 (Tex. App.—El Paso 2004, orig. proceeding)).

Here, appellant asserts that Velasco signed what appellant contends is a Spanish 

version of the arbitration agreement. It is undisputed that Velasco did not sign the 
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English version. Nevertheless, appellant attached copies of both the English and Spanish 

versions of the agreement to its motion to compel arbitration and relied on the English 

version when making arguments to compel arbitration. At the hearing on the motion to 

compel arbitration, appellant’s counsel noted: “The English version, if you read it, Your 

Honor, even says in the severability clause, it says, ‘This Arbitration Agreement has been 

translated into Spanish. In the event of conflict or apparent conflict between the Spanish 

version and this version, this version will govern.’” Indeed, the English version of the 

agreement does provide the aforementioned statements referenced by appellant’s 

counsel. Additionally, when this dispute arose during the hearing, the trial court 

mentioned: “I don’t have any reason to doubt that the English version is the same as the 

Spanish version . . . .“

Nevertheless, on appeal, Velasco argues that appellant cannot rely on the English 

version because it has not “been purported to be a translation of the Spanish document 

that was presented in the trial court, much less a certified translation as required by the 

Texas Rules of Civil Evidence . . . .” In making this argument, Velasco relies heavily on 

Texas Rules of Evidence 902(3) and 1009. See TEX. R. EVID. 902(3), 1009.

We are not persuaded by Velasco’s reliance on Rule 902(3), as that rule pertains to 

the self-authentication of a foreign public document, which is a “document that purports 

to be signed or attested by a person who is authorized by a foreign country’s law to do 
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so.” Id. at R. 902(3). The document at issue here is not of the type referenced by Rule 

902(3).

On the other hand, Rule 1009 does address the type of document involved in this 

case—the translation of a foreign-language document. See id. at R. 1009. Specifically, 

with regard to the admissibility of a translation of a foreign-language document, a party 

must, at least forty-five days before trial, serve on all parties: (1) “the translation and the 

underlying foreign language document”; and (2) “a qualified translator’s affidavit or 

unsworn declaration that sets forth the translator’s qualifications and certifies that the 

translation is accurate.” The record does not reflect that appellant served on all parties, 

at least forty-five days before trial, a translation and the underlying foreign-language 

document, as well as a qualified translator’s affidavit or unsworn declaration. As such, 

we cannot say that appellant satisfied the requirements of Rule 1009. See id. And because 

appellant failed to satisfy the requirements of Rule 1009, we cannot say that the purported 

English version of the arbitration agreement was properly before the trial court. See id.;

see also Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998) (noting that 

a ruling on the admissibility of evidence will be affirmed on appeal if there is any 

legitimate basis in the record to support it).

However, despite the foregoing, appellant complains that Velasco waived his 

complaint about the usage of the English version of the arbitration agreement by 

appellant as a translation of the Spanish agreement that Velasco purportedly signed. 
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Rule 1009 specifically addresses objections to foreign-language documents. In particular, 

Rule 1009(b) provides that: “When objecting to a translation’s accuracy, a party should 

specifically indicate its inaccuracies and offer an accurate translation. A party must serve 

the objection on all parties at least 15 days before trial.” Id. at R. 1009(b). Moreover, Rule 

1009(c) states that:

If the underlying foreign language document is otherwise admissible, the 

court must admit—and may not allow a party to attack the accuracy of—a 

translation submitted under subdivision (a) unless the party:

(1) Submitted a conflicting translation under subdivision (a); or 

(2) Objected to the translation under subdivision (b).

Id. at R. 1009(c). Implicit in subsections (b) and (c) of Rule 1009 is that the opposing party 

provided the necessary documentation outlined in subsection (a). See id. at R. 1009. 

As noted above, appellant did not comply with the requirements of Rule 1009 to 

serve on all parties, at least forty-five days before trial, a translation and the underlying 

foreign-language document, as well as a qualified translator’s affidavit or unsworn 

declaration. And because appellant did not serve a proper translation of the purported 

Spanish version of the signed arbitration agreement, there was nothing for Velasco to 

object to under Rule 1009(b), though he objected to the admissibility of the relevant 

documents anyway.2 See id. at R. 1009(b). Accordingly, we are not persuaded by 

appellant’s waiver contention.

 

2 Velasco specifically objected that: 
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Therefore, based on the foregoing, we conclude that the trial court did not abuse 

its discretion by denying appellant’s motion to compel and stay litigation proceedings 

because the effect of appellant’s failure to comply with Rule 1009 was that appellant failed 

to establish the existence of a valid, enforceable arbitration agreement. See id.; see also In 

re Kellogg Brown & Root, Inc., 166 S.W.3d at 737; Enter. Field Servs., LLC, 405 S.W.3d at 773; 

In re Jebbia, 26 S.W.3d at 756-57. Accordingly, we overrule appellant’s first ten issues, as 

they presuppose the existence of a valid, enforceable arbitration agreement. See TEX. R.

APP. P. 47.1.

Next, we address appellant’s eleventh issue, which asserts that the trial court 

abused its discretion by denying appellant’s motion to compel arbitration and stay 

litigation proceedings with prejudice. The entirety of appellant’s argument in this issue is 

as follows:

The Order signed by the Trial Court denied Appellants’ Motion with 

prejudice. Appellants argue there is no statute or caselaw that permits the 

Trial Court to deny a Motion to Compel Arbitration with prejudice. The 

FAA provides no legal basis and Appellants argue no caselaw permits this 

as well. See 9 U.S.C. §§ 1-16. Appellants argue the Trial Court committed 

error and abused its discretion by denying the Motion with prejudice.

Notwithstanding the fact that this issue is arguably inadequately briefed, see TEX. R. APP.

P. 38.1(i), the Fifth Circuit Court of Appeals has stated that: “If the trial court determines 

 

And they haven’t proved that the Spanish version that they allege that my client signed, 

which hasn’t been proven yet, is a legally sufficient translation into English and, therefore, 

the English version—They need to bring someone to do that, Judge. It’s their burden of 

proof with respect to that issue.
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that there is no contractual relationship between the parties requiring arbitration of a 

dispute between them, or that no dispute between them falls within the scope of an 

arbitration agreement by which they are mutually bound, the court must deny the motion 

to compel arbitration with prejudice.” ASW Allstate Painting & Constr. Co. v. Lexington Ins. 

Co., 188 F.3d 307, 311 (5th Cir. 1999) (emphasis added). In light of the foregoing, we 

cannot say that the trial court abused its discretion by denying appellant’s motion to 

compel and stay litigation proceedings with prejudice. We overrule appellant’s eleventh 

issue.

IV. CONCLUSION

Having overruled all of appellant’s issues on appeal, we affirm the judgment of 

the trial court.

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed December 20, 2017

[CV06]