## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

_________________________ __ No. 02

- 19

- 00040

- CV

___________________________

On Appeal from the 236th District Court Tarrant County, Texas Trial Court No. 236

- 302552

- 18
Before Sudderth, C.J.; Gabriel and Birdwell, JJ. Memorandum O pinion by C hief Justice Sudderth 

### H AWK 

### S TEEL 

### I NDUSTRIES 

### , I NC



### . , Appellant

V


### . W ILLIE 

### J AMES 

### S TAFFORD 

### , J R


### . , Appellee2 MEMORAND UM OPINION Appellant Hawk Steel Industries, Inc ., a ppeals the trial court’s order denying its request to compel arbitration. Because Hawk failed to show that Stafford’s claims are subject to a valid arbitration agreement, we hold that the trial court did not abuse its
discretion and affirm the trial c ourt ’s order. Background
Staffor d, an employee of Hawk, a non subscriber to workman’s compensation, filed suit against Hawk alleging that he suffered an on

- the

- job injury while unloading a
truck

. H awk answered and moved to compel arbitration

. In support of its motion,
Hawk attached a business records affidavit that authenticated three documents as records made and retained by Hawk in the reg ular course of business : (1) a document entitled “ Receipt of SPD and Mutual Agreement to Arbitrate Acknowl edgm ent ” ( Receipt and A cknowledgment ) , (2) the “Summary Plan Description” of Hawk’s occupational injury employee benefit plan (SPD) , and (3) a “Mutual Agree ment to Arbitrate” (MAA)

. The Receipt and A cknowledgmen t state s in full:

RECEIPT OF SPD AND MUTUA L AG REEME NT TO ARBITRATE ACKNOWLEDGEMENT
RECEIPT OF MATERIALS . By my signature below, I acknowledge that I have received and read (or had the opportuni ty to read) the Summary Pla n Description (the “SPD”) for t he Hawk Steel Industries, Inc. Occupational Inju ry Em ployee Benefit Plan, effective March 1, 2008

.3

ARBITRATION . I also acknowledge that this SPD includes a mandatory company policy requiring that certain claims or disputes relating to an on

- the

- job inju ry (that cannot otherwise be resolved betwee n th e Com pany and me) must be submitted to an arbitrator , rather than a judge and jury in court. I understand that by receiving this SPD and becoming emp loyed (or continuing my emp loyment) with the Company at an y time on or after March 1, 2008 , I am accep ting and agreeing to comply with these arbitration requirements. I understand that the Company is also accepting and agreeing to comply with these arbitr ation requirements. All co vered claims brought by my spou se, children, beneficiaries, representatives , ex ecuto rs, administrators, guardians, heirs or assigns are also subject to the SPD’s arbitration policy, and any decision of an arbitrator will be final and binding on such person s and the Company. [emphasis ad ded] Except for the title of the do cume nt , th e Receipt and Acknowledgment does not reference any document entitled “ Mutual Agreement to Arbitrate.” The SPD , which is specifically referenced, d oes not address arbitrat ion for on

- the

- job injuries

. 1
Hawk argues that the terms of the arbitrat ion agreem ent a re set out in the
MAA. The MAA filed by Hawk provides for an effective date of March 1, 2008, and would purport to cover on

- the

- job

- injury disput es. However , Hawk provided no
evidence tha t the MAA it produced was the same MAA that is refere nced in the title of the Receipt and Acknowledgement or the MAA that governs this dispute. Neither
Hawk nor Stafford are identified anywhere in the MAA . Inst ead, t he MAA defines the agreement as betwe en the “Company” and the “Claimant” and def ines “Comp any” as an entity listed on an attached “ Schedule A

. ” But there are no

1 The only time arb itration is me ntioned in the SPD is in reference t o filing suit
u nder section 502(a

) of ERISA

. S ee 29 U.S. C.A. § 1132(a) (1)( B).4

schedules attached to the version of the MAA submitted by Hawk in support of its
motion.
While Stafford admitted that he had signed the Receipt and Acknowledgmen t

an d rece ived the SPD, he denied ever having received or been notified of the
existence of the MAA. Stafford also asserted that Hawk had objected to and refused

to ans wer Stafford ’s discovery reques ts seeking information about Stafford’s rec eipt
of th e MAA and whether the MAA was part of the SPD.
A t the hearing on Hawk’s motion to compel arbitration, no witnesses testified
and no additional evidence was offered or admitted. After t he t rial court denied Hawk’s motion to compel a rbit ration , t his appeal followed. See Tex. Civ. Prac. &
Rem. Code Ann. § 171.098

. Discussion Although framed as two separate issues, Hawk’s argument on appeal is that the
trial court abused its discret io n by denying its motion to compel arbitra tion becau se Stafford was bound by the terms of the MAA that was attached to Hawk ’ s motion

. We disagree

. Hawk neither met its evidentiary burden of establish ing the contents of
the MAA referenced in the Receipt an d Acknowledgement nor established that
St afford’s claims could be subject to arb itrati on based solely on the arbitration paragraph of the Receipt and Acknowledgment . Thus, the trial court did not abuse its
discretion by de nying the motion to compel arbi tr ation.5

I. Standard of review and applic able law
We review a trial court’s rul ing on a motion to compel arbitration for an abuse
of discretion. In re Labatt Food Serv. , L.P. , 279 S.W.3d 640, 643 (Tex. 2009). We defer

to the trial court’s factual dete r minations but review legal questions de no vo. Doe v. Columbia N. Hills Hosp. Sub sidiar y, L.P. , 521 S.W.3d 76, 80 (Tex. App.

— Fort Worth 2017, pet. denied). Whether a valid arbitration agreement exists is a question of law

t hat we review de novo. Id. at 8 0

– 81. In the trial court, motions to comp el arbitration are treated somewhat similarly

to motio ns for summary judgment. Id. at 81 (citing In re Jebbia , 26 S.W.3d 753, 756

– 57 (Tex. App.

— Houston [14th Dist.] 2000, orig. proc eeding); Jack B. Anglin Co. v. T ipps , 84 2 S.W.2d 266, 268

– 69 (Tex. 1992) ). The sam e evidentiary standards apply, and the
party alleging that an arbitration agreement exists must present summary p roof that the dispute is subject to arbitration (through aff idavits, pleadings, discovery, o r stipul ations), and the party resisting arbitratio n may contest the opponent’s proof or
p resent evidence supporting the elements of a defense to enforcement. Id. If the evidence raises a genuine issue of material fact , th e trial c ourt must conduct an

ev identiar y hearing to resolve the factual dispute. Id. (citing Jack B. Anglin Co. , 842
S.W .2d at 269; In re Estate of Guerrero , 465 S.W.3d 693, 700 (Tex. App.

— Houston [14th Dist.] 2015, pet. denied) ). As the party seeking to compe l arbitration, Hawk bor e the bu rden to establish
the e xistence o f a valid arbitration agreement. In re Advan cePCS Health L.P. , 1726

S.W.3d 603, 605 (Tex. 2005). A valid arbitration agreement exists if the employee (1) received notice of the polic y and (2) accepted it. In re Da llas Pet erbilt, Ltd. , 196 S.W.3 d 161, 162 (Tex. 2006)

. Generally, there is a st rong presumption in favor of arbitration, but that presumption does not apply to the initial determination of whether a valid arbitration agreem ent exi st s. J.M. Davidson v. We bster , 1 28 S.W.3d 223, 227 (Tex

. 2003). While an arbitration agreement need not b e in any particular form, it must clearly appear that the parties intended to submit their dispute to arbitration and to be bound by that decisi on. Wetz el v. Sullivan, King & Sabom, P .C. , 745 S.W.2d 78, 81 (Tex. App.

— Houston [1st Dist.] 1988, no pet.).
On ce the existence of a valid arbitration agreement has been established, we apply traditional contract principles to interpret the agreement. J. M. Davids on , 128 S.W.3d at 227

. We give the language used its plain gram matical meaning unless it definitely ap pears that the intention of the parties would thereby be defeated. Reilly v. Rangers M g m t

. , Inc. , 727 S.W.2d 527, 529 (Tex. 1987) (citing Fox v . Thore so n , 398 S.W.2d 88, 92 (T ex. 1966 )).
I I
. No evidence of notice or receipt of MAA Hawk argues that the parties agreed to arbitrate claims related to on

- the

- job injuries and th at Stafford’s signature on the Receipt and Acknowledgment clearly
estab lishes th at Stafford received an d accept ed the terms of the MAA

. Yet, other
than in the tit le of the document it self , the Receipt and Acknowledgment makes no
reference to a document entitled “Mutual Agreement to Arbitrate

. ”7

To interpret the Recei pt and Acknowledgment, we ne ed loo k n o further than the p lain words used by the parties. See Reilly , 727 S .W.2d at 529. And in so doing, we must harmonize and give meaning to all terms used in an agreement and avoid rendering any term meaningless

. Stine v. Stewart , 80 S.W.3d 586, 5 89 (Te x. 20 02).
The title o f the one

- page Receip t and Acknowledgment is “Receipt of SPD and
Mu tual Agreement to Arbitrate Acknowledgment.” Hawk argues that t he title should be read to expressly reference Sta fford’s r eceipt of the M A A as a separate do cument
. B ut w e must re ad the tit le in the context of the content of the document. See Sti ne , 80 S.W.3d at 589 ; se e also RSUI Indem. Co. v. The Lynd Co. , 466 S.W.3d 113, 121 (Tex. 2015) ( explaining that while cou rts may c onsider the title of a contract pr ovision or

s ec tion to interpret a contr act, “ the greater weight must be given to the operat ive

contract ual clause s of the agreement ” )

. Below the title, t he first paragraph is labeled “Receipt of Materials” and st ates that Stafford has rec eived and read th e SPD , which
i s a ca pitalized , defined term in the document . It does not state that Stafford has

r eceived th e M A A; in fact, it makes no mention of the M A A at all or attempt to define the M A A

. T o make up for thi s, Hawk r elies on the second paragraph, tit led “ Arbitra ti o n. ”
It states : I also acknowledge that this SPD includes a mandatory company policy requiring that certain claim s or dispu tes relating to an on

- the

- job injury (that cannot otherwis e be resolved be t ween the Company and me) must be submitted to an arbitr at or, rather than a judge and jury in court. I understand that by receiving this SPD and becoming employed (or8

cont inuing my employment) with the Company at any time on or after March 1, 2008 , I am a c cepting a nd agreeing to comply with these
a rbitration r eq uirements. Certainly i n this para graph Stafford acknowledges that the SPD contains an arbitration prov

ision as t o certain claims or disputes relating to on

- the

- job injuri es. And i n the s en tence t hat follow s , Stafford acknowledge s that he agree s to co mply with the arbitration requirements in the SPD

. But the SPD actually contains no provision rega rding arbi tration of injury claims

. The SPD is 21 pages long and c ontains no refere nce to th e MAA. The only
mention of arbitr ation within the SPD is a p ro vision that if an employee disagrees with a determination of ERISA benefits, the disagreement is su bject to n o n binding arbitration prior to filing a civil action. The SPD ref ers to an d includes only one appendix, whic h provides notice in compliance wit h t he Health Information Portability and Accountability Act (HIPAA).
Nor does the MAA contai n any reference to the SPD. And the MAA and the
SPD do n o t appear to be pa rt of the same document. The format of the SPD differs
from that of the MAA: the SPD is formatted in a single column while the MAA is written in two columns; the SPD is w ritten in a different font than the MAA; section headings in the SP D are in bold, cap italized letters and centered on the page , while the section headings in the MAA are u nd erlined and left

- justified; every page of the
SPD

— including the appendix

— includes a footer t h at states, “Summary Plan Description of the Occupational I njury Employee Be nefit Pla n,” while the MAA’s9

footer states “Copyright 2003 Gibson, McClure, W al lace & Da niels, L.L.P.” Finally,
the MAA is completely divorced from the SPD, making no men tion of t h e SPD, of
Hawk , or of Stafford. While it identifies a “C o mpany” and define s it as t he entity set forth on “Schedule A ” to the MAA, no such schedule was attached t o the version of the MAA that was filed as part of Hawk’s motion to compel arbitrat ion. Indeed, the only commonality the SPD and MAA appear to share i s their e ffective dates of March 1, 2008. Stafford agreed that “by receiving th[e] SPD and becoming em pl oyed (or continuing [his] employment) with the Compa ny at any time on or after March 1,
2008 , [he was] accepting and ag r eeing to comply w ith these arbitration requirements.”
In ot her words, Stafford agreed to accep t and comply with the ERISA arbitration
p rovisions provided for in the SPD. B ut Stafford’s a greement a s to the SPD provides no evidence that he agreed to or ha d any notice of th e MAA whi ch was offered by Hawk in support of its motion to compel arbitration

. Other th an offering the MAA into ev id ence through a business records affidavit, Hawk prov

ided no a d ditional evidence that Stafford received or otherwise
had notice of the MAA in quest ion. See Peterbilt

, 196 S.W .3d at 162. The business
records af fidavit made no attempt to establish tha t St af ford received or was notified
of th e existen c e of the MAA. Nor did Hawk elicit any testimony at the h e aring in an10

attem pt to est ablish Stafford’s notice or knowle dge of the MAA. 2 Hawk thus faile d to meet its burden of proof that Stafford received t he M AA

. See Big Bass Towin g Co. v.
A kin , 409 S.W.3d 835 , 840 (Tex. App.

— Dallas 2013 , no pet
. ) (rejecting ar g ument that employee had notice of arbitration agreemen t based on affidavit which claimed that agreement was disc ussed at a company meetin g but prov ided n o basis for the affiant’s personal knowledge and did nothing to establish employee attended meeting ).
T h ese facts are strik

ingly similar to th ose in Big Bass Towing , a case decided by
our sister court in Dallas

. In that case, the employer argued tha t th e employee acknowledged and agreed to the exist ence of a binding arbitration policy to resolve all

wo rkp l ace injury disputes

. Id. at 83 7. The employer argued that its “Occupational
In jury Employee Benefit Plan” (of which the employee did no t dispute he h ad notice) and “Mutual Agre ement to A rbitrate” were one document. Id. at 839. The Dallas
court dete rmi n ed that the employer had not established that the Mutu al Agreement to
Arbitrate was part of the Occupational Injury Employee Benefit Plan and noted tha t

t he employee benefit plan made no m ention of the agreement to arbitrate ; that t he only reference to ar b itration in the bene fit plan related to ERISA disputes ; that t he benefit plan wa s formatted in a single column whereas the arbitration ag reement wa s fo rm atted in a two

- column lay out ; that t he benefi t plan utilized a different font than
the arbitration agr e ement ; that t he bene fit plan included a footer that st ated,

2 In fact, Sta fford testified through his affida vi t that he had “ never seen, read [,] or received a c opy of the [MAA]. ”11

“Occupational Injury Employee Benefit Plan,” whereas the arbitration agreemen t included a f

oo ter that stated, “Copyrig ht 2003 Gi bson, McCl ure, Wallace & Daniels,
L.L.P.” ; 3 and that t he last fi ve p ages of the benefit plan were an appendix regarding
HI PAA requirements

. Id. at 839

– 40. The employer also argued that the two
documents were relat ed b ec ause they both had the same effective dates

. Id

. at 840. The Dallas court summarily rejected this argum e nt, stating, “The fact that two
documents have the same effective date does not imply they are the same document
or otherwise related. ” Id. Th e co ur t concluded that the arbitra tion agree ment and t he benefit plan were separate documents, and “for p urpose s of notice, any r eference to the occupational benef

its injury plan did not provi de notice of the arbitration agreement.” Id.
Like wise, we c oncl ud e that any reference in the Receipt an d Acknowle dgment to the SPD did not provide notice of the MAA

. Haw k offered no evide nce at trial that would support a conclusion that the MAA was p art of the SPD and thereby incorporated into the Recei pt and Ack nowl ed gment
. 4 T heir matching effective dates
do not alone conclusi

vely rende r them as one document. See id. We therefore rejec t Hawk ’s argument that the Receipt and Acknowledgment established that Stafford agreed to or had n otice of the terms of the MAA

.

3 I t appears the same form arbitration agreeme nt was use d in both cases.

4 We further note t hat Hawk m ade no effort to show that the version of the MAA submitted at trial was still in effect at the time of Stafford’s injury.12

II I. Ambiguous arbitration paragraph
To the extent that Hawk a rgues that the arbitration para graph o f the Receipt
and Acknow

ledgme nt itself cons titutes an arb itration agreement t hat covers Stafford ’ s claims, that argument fails because that paragraph is a mb iguou s as to which claims are subject to arbitration

. The qu estion of arbitrabil ity of a claim or dispute is a threshold

m atter for the court to decide

. RS L Funding, LLC v. News ome , 569 S.W.3d 116, 120 (Tex. 2018) (reiterating that partie s may agre e to d elegate the issue of arbitrability to
an arbitrator but that the “defau lt rule” l eaves that determi nation to the court)

. T he
arb itration paragraph provides that the parties would arbitrate “ cer tain claims or disputes relating to an on

- the

- job injury

. ” [ Em phasis added.]. The word “certain” serves to limit the scope of on

- the

- job claim s and disputes tha t would be subject to

ar bitrat ion. Yet, the document is s ilent as to which “cer tain” on

- the

- jo b claims and disputes would be subject to arbi tration. By f ai ling to provide further evidence that the parties’ intent to arbitrate “certain” on

- the

- job

- injury claims include d those cl aims

a sserted by Stafford , Hawk ha s failed to meet its b urden to show t hat Stafford’s
claims in this lawsuit were sub ject to an arb it ration agreement. J.M. Davidson , 128 S.W.3d at 231 ( “ While we generally favor arbitration agreemen ts, we should not
reflex ively endor se an agreement s o lac k ing in precision that a court mu st f irst edit the
document for comprehension, and t h en re writ e it t o ensure its enforceability. ” ). We
therefore hold that the trial court did not abuse its discr etio n by denying Hawk’s
moti on to compel arbitra tion.13 Conclusi on Having held that Hawk has failed to establish t hat Stafford’s claims are subjec t to a val id a rb itration agree ment, we affirm the trial court’s order denying arbitration.

/s/ Bonnie Sudderth Bonni e Sudderth Chi ef Justice
Delivered: August 15, 2019