COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

A

- 1 FREEMAN MOVING & STORAGE LLC AND A

- 1 FREEMAN NORTH AMERICA INC. , Appellants,

v. ARACELI ORTIZ GALINDO , Appellee. § § § § § No. 08

- 2 3

- 00 001

- CV Appeal from the 448th J udicial District Court

of El Paso County, Texas

(TC# 2022DCV1753)

MEMORANDUM OPINION
T his is an interlocutory appeal from an order denying a motion to compel arbitration filed by Appellant s A- 1 Freeman Moving & Storage L LC a nd A

- 1 Freeman North America Inc. ( collectively, the A- 1 Freeman Entities ) seeking to compel Appellee Araceli Ortiz Galindo to arbitrate her negligence claim against them. For the reasons set forth below, we reverse in part and affirm in part

. 

### F ACTUAL AND 

### P ROCEDURAL 

### B ACKGROUND
A. Ortiz Galindo ’s a ccident Ortiz Galindo began working for Appellant A- 1 Freeman Moving & Storage, LLC (A

- 1
Freeman M oving ) in May of 2019 and was involved in a work-place accident in January of 2022.2 In June 2022, Ortiz Galindo filed a petition in the trial court , which she subsequently amended in July 2022, seeking damages for bodily injury and lost wages, naming both of the A

- 1 Freeman Entities

. 1 In her amended petition, Ortiz Galindo alleged that while employed by Appellant A

- 1
Freeman Moving , she was attempting to lower herself from a ladder on a truck she believed was owned by Appellant A

- 1 Freeman North America, Inc. (A

- 1 Freeman NA) and fell backwards , causing her injuries

. Ortiz Galindo alleged the t ruck did not have a ramp and its back door did not work , which led to her fall

. She further cl aimed she had previously reported t he truck issue s to both A

- 1 Freeman Entities, and they therefore knew or should have known of th is allegedly “dangerous condition ” but failed to take any action to correct it. Ortiz Galindo sought to hold both entities jointly responsible for their alleged neg ligence, contending , among other things, that they failed to provide her with a safe working environment and/or proper equipment , fail ed to correct a known dangerous condition , and fail ed to establish adequate safety procedures in the workplace

. B. The A
- 1 Freeman Entities ’ m otion to c ompel a rbitration After filing their initial response s to Ortiz Galindo ’s petition, the A

- 1 Freeman E ntities filed a joint motion to compel arbitration , alleging A

- 1 Freeman Moving had an arbitration agreement in place, referred to as the “Mutual Agreement to Arbitrate ” (the MAA) , which provided for mandatory arbitration of any claims its employees might have against it , including those for job

- related injuries suffered in the scope of their employment

. The MAA stated that the agreement

1 Ortiz Galindo initially named three entities in her lawsuit : A

- 1 Freeman Moving & Storage, El Paso , LLC ; A

- 1 Freeman Moving & Storage, Inc. ; and A

- 1 Freeman North America Inc. Pursuant to a Rule 11 Agreement, A

- 1 Freeman Moving & Storage, El Paso, LLC was nonsuited on July 27, 2022. And pursuant t o that same agreement, Ortiz Galindo amended her complaint to substitute A

- 1 Freeman Moving & Storage LLC for A

- 1 Freeman Moving & Storage, Inc.3 to arbitrate applied to A

- 1 Freeman Moving as well as its affiliated companies but, as discussed in more detail below, the MAA failed to name any such companies. The A

- 1 Freeman Entities submitted an affidavit from Cary Davis, A

- 1 Freeman Moving’s Safety Director and Records C ustodian, averring that he was attach ing true and correct copies of three documents Ortiz Galindo signed both before and after her injury in which she acknowledged she was aware of the arbitration agreement and agreed to its terms. These documents include d: (1)

a “ Notice of Employment Application ” Ortiz Galindo hand

- signed on the day she was hired , stating she aware of A

- 1 Freeman Moving’s “M andatory A rbitration P lan ” and had been given a copy of it ; (2) a “ Receipt and Arbitration Acknowledgment ” form she allegedly electronically signed on her first day at work , again acknowledging the existence of the M andatory A rbitration
P lan and stating she had been given a copy of the MAA ; and (3) an “A cknowledgment ” form she signed the week after she was injured , acknowledging the MAA’s existence and that it covered her injury , and stating that an employee’s acceptance of benefits under A

- 1 Freeman Moving’s injury

- benefit plan constitute s an irrevocable acceptance of its arbitration agreement

. Ortiz Galindo opposed the motion, supported by her own affidavit, arguing : (1) the MAA was illusory because it gave A

- 1 Freeman Moving the unilateral right to alter or terminate the agreement at any time; (2) the record did not conclusively establish that she received a copy of the
MAA a t any time during or after her employment or that she agreed to its terms ; (3) she did not recall electronically signing the acknowledgment form on her first day of work; and (4) the third document she signed w as procedurally unconscionable because it w as given to her in English and she only spoke Spanish , and because she was taking pain medication when she signed it

. And finally , Ortiz Galindo argued that even if she agreed to arbitrate her negligence claims with A

- 14 Freeman Moving, she entered into no such agreem ent with A

- 1 Freeman NA , and she therefore could not be required to arbitrate her claims with the latter entity

. In their reply, t he A

- 1 Freeman Entities did not present any additional evidence to rebut Ortiz Gal indo ’s claims that she did not receive a copy of the MAA or that the third document she signed w as procedurally unconscionable. Instead, t hey argued the undisputed evidence demonstrated Ortiz Ga lindo signed all three documents and, by law, the court must presume she read and understood all three of them. T hey fu rther argued that Ortiz Galindo ’s affidavit , in which she alleged she did not speak English and she was taking pain medication after her injury , was insufficient, standing alone, to sustain a finding of procedural unconscionability. In addition, they denied the MA A was illusory, asserting it contained a savings clause providing that the agreement would be in existence even after Ortiz Gali ndo ’s employment with the company terminated. And finally, they argued Ortiz Galindo ratified the agreement to arbitrate by accepting and retaining medical benefits under th e company’s Benefit Plan.
C. The t rial c ourt’s r uling At the A

- 1 Freeman Entities’ request, t he trial court held a hearing via Zoom on the motion to compel arbitra tion , at which the attorneys for both sides appeared . However , none of the parties provided the court with any additional evidence at the hearing ; instead, they relied on the affidavits they had previously filed

. Following the hearing, the trial court denied the A

- 1 Freeman Entities’ motion to compel arbitration without specifying its reasons

. This appeal followed. 

### I SSUES O N 

### A PPEAL
In four issue s , the A

- 1 Free man Entities contend the trial court erred by denying their motion to compel arbitration, arguing : (1) they established that a valid and enforceable arbitration agreement (the MAA ) was in place to which Ortiz Ga lindo consented, and Ortiz Galindo ’s claims5 f a ll within the scope of the a greement ; (2) Ortiz Galindo failed to meet her burden of establishing her affirmative defenses that the MAA was illusory and/or the documents she signed agreeing to its terms were procedurally unconscionable; ( 3 ) Ortiz Galindo ratif ied the MAA by accepting and retaining m edical benefits under the Benefit Plan ; and (4) A

- 1 Freeman NA was entitled to compel arbitration, as it was a related entity named in the MAA

. In the alternative, the A

- 1 Freeman Entities urge that if the Court believes factual issue s exist regard ing whether Ortiz Ga lindo had notice of the Arbitration Agreement or the circumstances surrounding her receipt and signatures ,

we should remand the matter to the trial court for an evidentiary hearing

. 

### A PPLICABLE 

### L AW AND 

### S TANDARD OF 

### R EVIEW
Arbitration is a contractual proceeding by which the parties, in order to obtain a speedy and inexpensive final disposition of disputed matters, consent to submit the controversy
to arbitrators for resolution. See In re Phelps Dodge Magnet Wire Co. , 225 S. W.3d 599, 605 (Tex. App.

— El Paso 2005, no pet.) (citing Jack B. Anglin Co., Inc. v. Tipps , 842 S.W.2d 266, 268 (Tex. 1992) ). A party seeking to compel arbitration has the burden to prove a valid arbitration agreement exists and the claims raised fall withi n th e agreement ’ s scope. In re Rubiola , 334 S.W.3d 220, 223 (Tex. 2011)

. Courts determine whether an enforceable arbitration agreement exists by applying state contract law principles

. See In re Halliburton Co. , 80 S.W.3d 566, 568 (Tex. 2002) ; In re Kellogg Brown & Root, Inc. , 166 S.W.3d 732, 738 (Tex. 2005)

. An employer attempting to enforce an arbitration agreement has the burden to show the agreement meets all requisite contract elements. See J.M. Davidson, Inc. v. Webster , 128 S.W.3d 223, 228 (Tex

. 2003)

. T his includes establishing the employee consented to the agreement. See Aerotek, Inc. v. Boyd , 624 S.W.3d 199, 204 (Tex. 2021) (recognizing that because arbitration is a matter of consent, not coercion, t he question of whether a valid arbitration agreement exists includes proving the other6 party consented to the agreement ); see also Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford
Junior Univ ., 489 U.S. 468, 478, (1989) ( recognizing that arbitration “is a matter of consent, not coercion”)

. Under standard contract principles, t he fact that a party has signed an arbitration agreement
creates a “ strong presumption ” that the party has consented to its terms. Wright v. Hernandez , 469 S.W.3d 744, 756

– 57 (Tex. App.

— El Paso 2015, no pet.) (citing I n re Bunzl USA, Inc. , 155 S.W.3d 202, 208

- 10 (Tex. App.

— El Paso 2004, no pet. ) ) ; see also Rachal v. Reitz , 403 S.W.3d 840, 845 (Tex. 2013) (“Typically, a party manifests its assent by signing an agreement.”)

. I f the moving party meets its burden of establishing a valid agreement, the burden shifts to the party opposing arbitration to raise a defense against its enforcement. See In re McKinney , 167 S.W.3d 833, 835 (Tex. 2005) (per curiam)

. As with any other contrac t, a party seeking to avoid being bound by an arbitration agreement may raise various affirmative defenses, such as “ fraud, unconscionability or voidness under public policy ,” but has the burden of proving any such defense

. Royston, Rayzor , Vickery, & Will iams, LLP v. Lopez , 467 S.W.3d 494, 500 (Tex. 2015) (citing In re Poly

–

Am., L.P. , 262 S.W.3d 337, 348 (Tex. 2008 ) )

. We review a trial court’s order denying a motion to compel arbitration for an abuse of discretion. APC Home Health Servs ., Inc v. Martinez , 600 S.W.3d 381, 389 ( Tex. App.

— El Paso
20 19 ) (citing In re Labatt Food Serv., L.P ., 279 S.W.3d 640, 642

– 43 (Tex. 2009) ). When a trial court improperly denies a party’s right to arbitrate pursuant to a valid and enforce able arbitration agreement, the court has abused its discretion. In re Odyssey Healthcare, Inc ., 310 S.W.3d 419, 422 (Tex. 2010) (orig. proceeding) (per curiam) (citing In re Halliburton Co ., 80 S.W.3d at 573 ). The trial court ’ s determination of whether an arbitration agreement is valid and enforceable is a legal question subject to de novo review

. J.M. Davidson, Inc

. , 128 S.W.3d at 227

. A n appellate7 cou rt may uphold the trial court’s decision on a motion to compel arbitration on any appropriate legal theory urged below. APC Home Health Servs ., 600 S.W.3d at 389

. 

### T HE 

### M UTUAL 

### A GREEMEN T 

### T O 

### A RBITRATE WAS NOT 

### I LLUSORY Given its potentially dispositive nature, we first address the argument Ortiz Galindo made in the trial court , which she renews on appeal, that the MAA was illusory because it gave A

- 1
Freeman Moving the authority to unilaterally terminate or alter the agreement at any time

. We agree with the A

- 1 Freeman Entities, however, that while the MAA was subject to termination or modification, it c ontained an adequate savings provision that prohibited A

- 1 Freeman Moving from making any such changes in regard to previously accrued claims.
A. Applicable l aw An arbitration agreement, like any other contract, requi res mutual consideration from both parties, i.e. , a promise that binds both parties. See Temp. Alternatives, Inc. v. Jamrowski , 511 S.W.3d 64, 67 (Tex. App.

— El Paso 2014, no pet.) ; see also In re Palm Harbor Homes, Inc. , 195 S.W.3d 672, 676 (Tex. 2006) (recognizing that “[a] rbitration agreements, like other contracts, must be supported by consideration ”)

. Promises are i llusory and unenforceable when they fail to bind the promisor, who retains the option of discontinuing performance. Royston , 467 S.W.3d at 50 5

. T herefore, a promise to arbitrate is illusory and unenforceable if the contract permits one party to legitimately avoid its promise to arbitrate, “ such as by unilaterally amending or terminating the arbitration provision and completely escaping arbitration. ” Id. at 505 (citing In re 24R, Inc ., 324 S.W.3d 564, 567 (Tex. 2010) ; J.M. Davidson , 128 S.W.3d at 236 )

. However, an arbitration agreement subject to modification or termination will not be deemed illusory if it contains a n effective “savings clause ,” which (1) provides notice to the employee of any upcoming amendments and (2) provid es that any claim occurring prior to the8 modification or termination will remain subject to the agreement , thereby restraining the promisor’s ability to avoid the agreement. See Odyss ey Healthcare , 310 S.W.3d at 424 (holding that an arbitration clause in a workers’ compensation plan was not illusory where, although the employer reserved the right to “amend, modify, or terminate the Plan at any time,” it also provided that “no such amen dment or termination will alter the arbitration provisions

. . . with respect to

. .

. an Injury occurring prior to the date of such amendment or termination”); s ee also Halliburton , 80 S.W.3d at 570 (finding savings clause was effective where it included a ten

- day notice provision together with a provision that any amendments would only apply prospectively, which prevented the employer from avoiding its promise); but see Temp. Alternatives, Inc. v. J amrowski , 511 S.W.3d 64, 67, 71 (Tex. App.

— El Paso 2014, no pet.) (finding a savings clause ineffective where employer had the right “ to unilaterally alter or terminate the agreement at any point prior to formal arbitration without allowing [the employee] the opportunity to avail herself of the procedure to which she initially agreed ” thereby giving the employer the “ power to avoid arbitration altogether ”)

. B. The MAA c ontained an e ffective s avings c lause The MAA , which had an effective date of April 1, 2009, specifies “ COVER ED CLAIMS
SHALL BE EXCLUSIVELY RESO LVED BY BINDING ARBITRATION ,” and covered claims include claims arising from “[a]ny injury suffered by Claimant while in the Course and Scope of Claimant’s e mployment with Company, including but not limited to, claims for negligence, gross negligence and all claims for personal injuries

. . . . ” 2 Section 10 of the MAA provide s that A

- 1 Freeman Moving ha s “ the right to prospectively terminate this Agreement ” b ut provide s that any

2 The MAA defines a “ Claimant ” as a person “ employed by Company and has a Covered Claim. ” And , as discussed in more detail below, the “Company” is defined as those entities listed on “Schedule A,” but that schedule is not included in the appellate record.9 termination is not effective until “ ten (l0) days after reasonable notice is given to Claimant. ” More importantly, it expressly provide s that Termination is “not effective for Covered Claims which accrued or occurred prior to the date of the termination , ” which provision restrains A

- 1 Freeman Moving’s right to unilaterally avoid arbitration of previously accrued claims

. S erv ing as a n additional restraint on A

- 1 Freeman Moving ’s right to unilaterally terminate the agreement is Section 11 , which states the agreement “s hall survive the employer

- employee relationship between the Company and the Claimant and shall apply to any Covered Claim whether it arises or is asserted during or after termination of the Claimant's employment with the Company or the expiration of any be nefit plan.” The Supreme Court of Texas has found similar language in an arbitration agreement, providing that the agreement would “ continue [] beyond, and is not affected by, a termination of employment, ” to belie a finding that the employer retained any r ight to modify or abolish its terms

. See In re 24R, Inc. , 324 S.W.3d 564, 568 (Tex. 2010) ; see also In re Whataburger Restaurants LLC , 645 S.W.3d 188, 198 (Tex. 2022) ( arbitration agreement was not illusory where it provided that the duty imposed on “both the Company and on employees to arbitrate all legally recognized claims or disputes arising from the employment relationship shall continue beyond, and not be affected by, the termination of an employee ’ s employment ” )

. Ortiz Galindo , however, contends that Secti on 12 of the Agreement gives A

- 1 Freeman Moving the right to unilaterally modify the A greement at any time , with no savings provision. Section 12 , which is labeled “Sole and Entire Agreement,” provides: This Program Agreement constitutes the parties ’ complete agreement and supersedes any prior agreement regarding arbitration of Covered Claims which occur during the Term of this Agreement. Any agreement contrary to, or modifying, any of the provisions included in this Agreement must be entered into, in writing, by the chief executive officer of Company. Oral representations made before or after Employee is hired do not alter this Agreement.10 We do not construe this section as giving A

- 1 Freeman M oving the right to unilaterally modify the MAA . I nstead , this section

— as the heading suggests

— simply m emorializ es that the MAA constitutes the parties’ “sole and entire agreement ” and ap pears only to address situations in which the parties mutually agree to a modification of the agreement’s terms , provid ing that any such agreement s must be in writing and signed by the CEO. W e find nothing else in the MAA suggesting A

- 1 Freeman M oving intended to reserve the right to unilaterally modify its arbitration policy. See In re Dillard Dep ’ t Stores, Inc. , 198 S.W.3d 778, 781 (Tex. 2006) (concluding arbitration agreement was not illusory where nothing in the relevant documents expressly reserved the employer a unilateral right to modify its arbitration policy). Accordingly, we reject Ortiz Galindo ’ s argument that the trial court could have relied upon a finding that the MAA was illusory as a basis for denying the A

- 1 Freeman Entities’ motion to
compe l arbitration. We therefore turn to the question of whether Ortiz Galindo agreed to arbitrate her claims with A

- 1 Freeman Moving

. 

### T HE 

### N OTICE OF 

### E MPLOYMENT 

### A PPLICATION
T he A

- 1 Freeman Entities argu e Ortiz Galindo ’s hand

- written signature on the N otice of
E mployment A pplication (the Notice) , which she signed on the day she was hired , established she agreed to arbitrate her claims against them

. The Notice stated that by completing and submitting her employment appli cation, Ortiz Galindo understood and agreed that:
A

- 1 FREEMAN MOVING AND STORAGE, LLC. (the “Company”) has a Mandatory Arbitration Plan (the “Plan”), which is the required and exclusive way for applicants, employees and the company to resolve any and all disputes . The Company has given me a copy of this plan. I have read the plan and understand it. I agree to resolve any dispute between the Company and me arising out of this application or, if the Company hires me, out of my employment, through the Mandatory Arbit ration Plan.11 On appeal, Ortiz Galindo argues the Notice does not establish that she received a copy of the MAA or otherwise agreed to its terms , pointing out that the Notice stat ed she was being given a copy of the Company’s “ Mandatory Arbitration Plan (the ‘ Plan ’ ), ” rather than the MAA

. Ortiz Galindo points out there is no document entitled “ Mandatory Arbitration Plan ” in the record, a nd
i nstead , the only arbitration agreement in the recor d is the MAA , yet the Notice does not indicate

s he was given a copy of the MAA

. Ortiz Galindo analogizes her situation to that in Hawk Steel Industries, Inc. v. Stafford , No. 02

- 19

- 00040

- CV, 2019 WL 3819506 (Tex. App.

— Fort Worth August 15, 2019, pet. denied) (mem. op. )

. In Hawk , an employee signed an acknowledgment form stating he was given a copy of his employer’s Summary Performance Plan ( the SPD). Hawk Steel Industries, Inc. , 2019 WL 3819506 at *1 . However, the SPD did not contain an arbitration
agr eement ; in stead, the arbitration agreement was housed in an entirely different document not referenced in the acknowledgment form. Id. The court held this was insufficient to establish that the employee received a copy of the arbitration agreement itself. Id. at *3

- 5

. Here, the record similarly fails to show Ortiz Galin do received a copy of the arbitration document referenced in the Notice

. However, the Notice itself contain ed a sufficient summary of the MAA ’s terms to put Ortiz Galindo on notice that she was agreeing to arbitrate any and all claims that she might have against A

- 1 Freeman Moving during the course of her employment. As the Supreme Court of Texas has long recognized , an employee’s acceptance of an arbitration agreement can be shown through evidence that an employee received notice of the arbitration agreement and continued to work after that time. In re Dallas Peterbilt, Ltd., L.L.P. , 196 S.W.3d 161, 163 (T ex. 2006) (per curiam ) (“An at

- will employee who receives notice of an employer ’ s arbitration policy and continues working with knowledge of the policy accepts the terms as a matter of law.”) (citing In re Dillard Dep ’ t Stores, Inc ., 181 S.W.3d 370, 375 ( ( Tex. App.

— El12 Paso 2005), subsequent mandamus proceeding , 186 S.W.3d 514 (Tex. 2006) ) ; see also Halliburton , 80 S.W.3d at 569 ( finding that employee accepted arbitration clause by continued employment after receiving notice). And in determining whether an employee received adequate notice of a binding arbitration agreement, the “notice analysis” is not confined to whether the employee received the underlying agreement itself, but to “all communications between the employer and empl oyee.” In re Dallas Peterbilt , 196 S.W.3d at 162 (citing Halliburton , 80 S.W.3d
at 568

– 69 )

. Accordingly, an employer can establish an employee received notice of the terms of the employer’s arbitration plan based on evidence that the employee received a “s ummary of the agreement to arbitrate.” Id. (citing Halliburto n ., 80 S.W.3d at 569 (holding that a notice and
summary of employer’s arbitration plan provided to the employee was unequivocal notice of the plan’s terms ) )

. T he pivotal question is whether the s ummary itself provided unequivocal notice of the terms of the arbitration agreement and its mandatory nature

. See Halliburton ., 80 S.W.3d at
569 (holding that a notice and summary given to the employee was unequivocal notice) ; see also In Re Dillard Dep’t Stores, Inc ., 153 S.W. 3d at 149 (citing Hathaway v. General Mills, Inc ., 711 S.W.2d 227, 299 (Tex. 1986 ) ) (“An employee has unequivocal notice [ of an arbitration agreement ] if she has been informed of the nature of the program and the certainty of their imposition.”). As Ortiz Galindo points out, i f th e summary fails to unequivocally convey the terms of the arbitration agreement or the mandatory nature of the agreement, that failure may raise a question of fact regarding whether the employee knowingly consented to arbitrate her claims. S ee HSS Sys., L.L.C.
v. Lucan , No. 03

- 10

- 00761

- CV, 2011 WL 2297716, at *4 (Tex. App.

— Austin June 9, 2011, no pet.) (mem. op.) (where summary set forth in brochure given to employees indicated the arbitration agreement was voluntary, the summary failed to provide notice of the mandatory nature of the13 arbitration agreement) ; see also Ha wk , 2019 WL 3819506 at *5 (summary given to employees held inadequate where it provided that “certain” claims and disputes would be subject to arbitration, and t he document was silent on what those “certain” claims were)

. As well, whe n the employer gives t he employee “conflicting signals” regarding the nature of the arbitration agreement, a question of fact may exist as to whether the employee received adequate notice of the agreement’s terms. See Hathaway , 711 S.W.2d at 2 2 9 (ho lding that unequivocal notice was question of fact when employee received written notice of policy modification but was told by superior “not to worry” about it and he would “take care of it”)

. Here, the Notice Ortiz Ga lindo signed clearly s tated A

- 1 Freeman Moving had a “mandatory ” arbitration plan that was the “required and exclusive way for applicants, employees and the company to resolve any and all disputes

. ” And it further stated Ortiz Galindo “agreed to resolve any dispute between the Company and me arising out of this application or , if the Company hires me, out of my employment, through the Mandatory Arbitration Plan.” Moreover, Ortiz Galindo did not allege Cuevas gave her any “conflicting signals” about the terms of the arbitration agreement itself or its mandatory nature. Accordingly, as a matter of law, the record establishes that Ortiz Galindo was given unequivocal notice of the terms of A

- 1 Freeman Moving ’s mandatory arbitration pla n and that she consented to those terms by continuing her employment with the
company. 3 Accordingly, we conclude that the trial court erred in denying A

- 1 Freeman Moving’s motion to compel arbitration

. We sustain issues one and two as to A

- 1 Freeman Moving

. 4

3 Because we conclude the Notice signed by Ortiz Galindo establ ished the existence of a valid, enforceable arbitration agreement , we need not consider whether the subsequent Receipt and Arbitration Acknowledgment form or post

injury Acknowledgme nt form did so

.
4 In light of this conclusion, we need not address the A

- 1 Freeman Entities’ i ssue t hree in which they claim Ortiz Galindo ratified the arbitration agreeme nt by accepting benefits under the Benefit Plan. Nor do we find it necessary14 

### W HETHER 

### A
- 1 F REEMAN 

### NA I S 

### E NTITLED TO 

### C OMPEL 

### A RBITRATION Finally , we address Ortiz Galindo ’s argument that even if she consented to arbitrate her claims against her employer, A

- 1 Freeman Moving, she did not consent to arbitrate her claims against A

- 1 Freeman NA , as A

- 1 Freeman NA was n either a signatory to the MAA n or referenc ed in any of the agreements she signed

. The A

- 1 Freeman Entities respond that the MAA itself provided Ortiz Galindo with notice she was agreeing to arbitrate her claims against A

- 1 Freeman Moving as well as any of its related companies , to include A

- 1 Freeman NA

. Alternatively, the y argue they are “related” companies and that both companies should therefore be entitled to compel arbitration of Ortiz Galindo ’s claims. We reject both arguments.
A. The m issing MAA Schedule A As the A

- 1 Freeman Entities point o ut, the MAA state d the agreement was between Claimants and the “Company,” and it defined “Company” to include A

- 1 Freeman Moving and all affiliated or related companies as follows: Company means the “the entity(ies) and person(s) set forth on Schedule A which is attached hereto

. The term ‘ Company ’ also includes all employees, officers, directors, agents, representatives, franchisors, affiliated or related companies of the entity(ies) and/or person(s) listed in Schedule A (other than Claimant) w hose alleged act or omission was the cause of any Covered Claim. ” The A

- 1 Freeman Entities contend that A

- 1 Freeman NA was listed as a related company in “Schedule A,” which was attached

— or supposed to be attached

— to the MAA. However, they also acknowled ge that due to a “clerical error,” the schedule was “inadvertently omitted” from the documents attached to their motion to compel

. Although the A

- 1 Freeman Entities suggest we should rely on the representations made in their brief regarding S chedule A , which are contradicted

to address their request in the alternative that we remand the matter for a n evidentiary Tipps hearing to further develop the record with respect to whether Ortiz Galindo had notice of the Arbitration Agreement and the circumstances surrounding her receipt of documents and signatures on them

.15 by Ortiz Ga lindo , we may not do so, as such purported evidence is outside the appellate record and
was not considered by the trial court in its decision

- making process

. 5 T EX
. R. A PP
. P. 3 8 .1 (i) ; s ee also Marshall v. Hous. Auth. of City of San Antonio , 198 S.W.3d 782, 789 (Tex. 2006) (court will not consider factual assertions that appear solely in briefs and are not supported by the record ) (citing T EX
. R. A PP
. P . 55.2(g), (i) (requiring petitioner ’ s statement of facts and argument to be

su pported by appropriate references to the record ) ); Perry v. S.N ., 973 S.W.2d 301, 303 (Tex. 1998) (“ We may not consider factual assertions that appear solely in the appellate briefs ” and that
were not based on evidence before the trial court). Accordingly, we cannot agree with the A

- 1 Freeman Entities that the MAA gave Ortiz Galindo notice she was agreeing to subject her claims against A

- 1 Freeman NA to arbitration.
B. Related e ntities
T he A

- 1 Freeman Entities ’ argument that A

- 1 Freeman Moving and A

- 1 Freeman NA are “related companies ” reads in its ent irety as follows: “ Additionally, whether or not expressly identified in Schedule A, A

- 1 Freeman North America, Inc. is a related company and as such is a party to the Arbitration Agr eement and may move to compel arbitration and join in this appeal of the denial .” Although we do not disagree that there may be instances in which a “related” entity has the right to compel arbitration despite being a non

- signatory to an arbitration agreem ent, the
A

- 1 Freeman Entities have not directed our attention to any evidence in the appellate record to

5 Ortiz Galindo further po ints out tha t the A

- 1 Freeman Entities did not provide a copy of Schedule A in their Appendix

. E ven if they had done so, we would not be able to consider the document , as it was not part of the appellate record. See Hogg v. Lynch, Chappell & Alsup, P.C. , 4 80 S.W.3d 767, 773 (Tex. App.

— El Paso 2015, no pet.) (“ Documents attached to a brief as an exhibit or appendix, but not appearing in the appellate record, cannot be considered on appellate review. ” ); see also Fibela v. Wood , 657 S.W.3d 664, 672 (Tex. App.

— El Paso 2022, no pet.) (because the appellate record consists of the clerk ’ s record and, if necessary, the reporter ’ s record , the “ attachment of additional documents as exhibits or appendices to briefs is not formal inclusion in the record on appeal a nd, therefore, the documents cannot be considered ”) (citing T EX

. R. A PP

. P. 34.1 ; Barton v. Barton , 584 S.W.3d 147, 152

- 53 (Tex. App.

— El Paso 2018, no pet.) ).16 support their argument that A

- 1 Freeman Moving and A

- 1 Freeman NA are in fact related companies, nor do they point to any evidence describing what th e nature of their relationship might be. Moreover, they have not cited to any legal authority to support their conclusory statement that A

- 1 Freeman NA is entitled to compel arbitration under these circumstances. The Texas Rules of Appellate Procedure p rovide that an appellant’s brief must contain a clear and concise argument, including appropriate citations to authority and to the record. See T EX
. R. A PP
. P. 38.1(i). “This requirement is not satisfied by merely uttering brief conclusory statements unsupported by legal citations.” Valadez v. Avitia , 238 S.W.3d 843, 845 (Tex. App.

— El Paso 2007, no pet.) (citing Sweed v. City of El Paso, 195 S.W.3d 784, 786 (T ex
. App.

— El Paso 2006, no pet.)). Accordingly, we conclude that A

- 1 Freeman NA did not preserve this issue for our review. The A

- 1 Freeman Entities have waived their argument in this regard , as their concl usory statements are not supported by citation to legal authorities. T EX
. R. A PP
. P. 38.1(i) ; see also In re
A.N.G. , 631 S.W.3d 471, 476

- 77 (Tex. App.

— El Paso 2021, no pet.) (explaining that issues “may be waived when appellant fails to provide citations, argument, or analysis” and the Court is “not required to perform research nor develop an argument for an appellant ” ) ; Bolling v. Farmers Branch Indep. Sch. Dist ., 315 S.W.3d 893, 896 (Tex. App.

— Dallas 2010, no p et.) (“ And, just as importantly, existing legal authority applicable to the facts and the questions we are called on to answer must be accurately cited

. . . . If we are not provided with existing legal authority that can be applied to the facts of the case, the brief fails .”). Accordingly, we conclude that the trial court did not err in denying A

- 1 Freeman NA’s motion to compel arbitration. We overrule the A

- 1 Freeman Entities’ issue four.17 

### C ONCLUSION
We reverse the trial court’s order denying the motion to compel arbitration as to A

- 1 Freeman Moving , affirm the trial court’s order denying the motion to compel arbitration as to A

1 Freeman NA, and remand to the trial court for further proceedings consistent with our opinion.

L ISA J. SOTO , Justice August 2 3 , 2023 Before Rodriguez, C.J., Palafox, Soto, J J

. Palafox, J., dissenting without separate opinion