COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

IN RE: READYONE INDUSTRIES, INC

. , § § § § § § No. 08

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- 00 1 1 9

- CV
AN ORIGINAL PROCEEDING
IN MANDAMUS

O P I N I O N In this original proceeding , ReadyOne Industries, Inc. seeks mandamus relief from the trial court’s order permitting discovery on the arbitrability of an agreement between ReadyOne and its employee , Roberto Carreon (“Carreon”) , governing work

- related injuries

. ReadyOne contends that the trial court erred in deciding that the Franken Amendment 1 might appl y to Carreon ’s negligence cause of action and t hat Carreon establish ed the facts necessary to raise a reasonable expectation that the arbitration agreement was unenforceable because of his mental capacity

. Concluding that the Franken Amendment is inapplicable in a personal injury suit and that Carreon failed to provide a colorable or reasonable ba sis for believing that discovery w ou l d materially aid
him in establishing his defense to the validity of the arbitration agreement , we conditionally grant mandamus relief

. FACTUAL AND PROCEDURAL BACKGROUND Alleging that he sustained an on

- the

- job injury, Carreon sued ReadyOne for negligence.

1 Section 8116 of the Department of Defense Appropriations Act of 2010 is known as the Franken Amendment because of its author, Senator Al Franken of “ Saturday Night Live ” fame.2

After filing an answer, ReadyOne moved to compel arbitration pursuant to an agreement requiring that claims of on

- the

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job injuries be submitted to binding arbitration. In response, Carreon moved for limited discovery on the issue of arbitrability to “develop [ his ] case and defend against [ReadyOne’s] contentions that a valid arbitration agreement exists [,] . . . [and] . . . to develop or inquire into any factual issues that may preclude or discredit the existence of a valid arbitration agreement .” At the hearing on these matters, Carreon re

- urged his contention that he needed limited discovery to further develop his defense to the arbitration agreement, namely whether ReadyOne
kn ew that, when he signed the agreement, he was incapacitated

. Carreon also argued that his claims against ReadyOne are not arbitrable because the Franken Amendment prevents federal contractors from enforcing agreements to arbitrate tort claims related to or arising out of negligent hiring, supe rvision, or retention

. ReadyOne countered that Carreon’s incapacity claim was refuted not only by inconsistences in the affidavit raising the issue, but also by the evidence attached to the affidavit and by the evidence it planned to introduce at the hear ing

. ReadyOne also disputed Carreon’s claim that the Franken Amendment applies to torts related to or arising out of negligent hiring, supervision, or retention in a personal injury suit

. As urged by ReadyOne, the Amendment applies only to t itle VII claims or tort s related to or arising out of sexual assault or harassment

. After considering the parties’ arguments , the trial court ordered limited discovery on the applica b ility of the Franken Amendment and on Carreon’s mental capacity . With respect to the applicability of the Franken Amendment, Carreon was permitted to discover if ReadyOne has federal contracts in excess of $1 million and if ReadyOne manufactures items commercially3

available off

- the

- shelf. MANDAMUS To obtain mandamus relief from the trial court’s discovery order, ReadyOne must meet two requirements. ReadyOne must show that the trial court clearly abused its discretion and that it has no adequate remedy by appeal. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135

- 36 (Tex. 2004). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to analyze or apply the law correctly. In re Cerberus Capital Mgmt., L.P. , 164 S.W.3d 379, 382 (Tex. 2005). A trial court has the discretion to order p re - arbitration discovery if it lacks sufficient information regarding the scope of an arbitration provision or other issues of arbitrability , such as a defense to arbitration

. In re Houston Pipe Line Co. , 311 S.W.3d 449, 451 (Tex. 2009) (orig. proceeding). Although t he scope of disc overy is within the trial court’s discretion, the trial court must make an effort to impose reasonable discovery limits

. In re CSX Cor p. , 124 S.W.3d 149, 152 (Tex. 2003). Accordingly, d iscovery requests must be reasonably tailored to include only matters relevant to the

case. In re Am. Optical Corp. , 988 S.W.2d 711, 713 (Tex. 1998)

. Because discovery is limited to matters that are rel evant to the case, requests for information that are not reasonably tailored as to time, place, or subject matter amount to impermissible “fishing expeditions.” See CSX Corp. , 124 S.W.3d at 152. Accordingly, a n order that compels production of patently i rrelevant matters is an abuse of discretion

. Id . at 1 53. A relator has no adequate remedy by appeal if the appellate court is unable to cure the trial court’s discovery error. Walker v. Packer , 827 S.W.2d 833, 843 (Tex. 1992)

. This occurs when4

the tria l court erroneously “ compels the production of patently irrelevant

. . . documents, such that it clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party. ” Id

. In such a situation, mandamus is the proper remedy. Id

. THE FRANKEN AMENDMENT In its first issue, ReadyOne argues that the trial court erred by ordering discovery regarding the applicability of the Franken Amendment because , on its face, the Amendment is inapplicable, and even if applicable, does not bar enforcement of the arbitration agreement. ReadyOne thus insists that the trial court abused its discretion by requiring discovery into patently irrelevant matters. We agree. Applicable Law Our analysis of whether the Franken Amendment applies in this case turns on a question of statutory construction. A question of statutory construction is a legal one that we review de novo

. Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 437 ( Tex. 2009). When construing statutes, we ascertain and give effect to the legislature’s intent. Id

. We do so by looking first and foremost at the statutory text, reading the words and phrases in context and construing them according to the rules of gram mar and common usage

. Id. ; Lexington Ins. Co. v. Strayhorn , 209 S.W.3d 83, 85 (Tex. 2006); TEX.GOV’T CODE ANN. § 311.01 1 (West 2005). Where statutory text is clear, it is determinative of legislative intent unless t he plain meaning of the statute’ s text would produce an absurd result. Entergy , 282 S.W.3d at 437. Several canons of statutory construction are helpful in guiding our analysis. Under the doctrine of ejusdem generis , when general words in a statute follow specific examples, the general5

words a re to be restricted in their meaning to a sense analogous to the same kind or class as those expressly mentioned. City of San Antonio v. City of Boerne , 111 S.W.3d 22, 29 (Tex. 2003). Likewise, according to the maxim noscitur a sociis (associated words) , when general and specific words are grouped together in a statute , the general words are limited by the specific and will be construed to embrace only objects similar in nature to those things identified by the specific words

. Id

. Similarly, the last an tecedent rule states that a qualifying phrase in a statute must be confined to the words and phrases immediately preceding it to which it may, without impairing the meani ng of the sentence, be applied. Spradlin v. Jim Walter Homes, Inc. , 34 S.W.3d 578, 58 1 (Tex. 2000)

. Discussion 1. Abuse of Discretion With these principles in mind, we have scrutinized the Franken Amendment to determine whether personal injury claims related to or arising out of negligent hiring, supervision, or retention fall within its parameters. We conclude that they do not. In relevant part, the Franken Amendment provides: (a) None of the funds appropriated or otherwise made available by this Act may be expended for any Federal contract for an amount in excess of $1,000,000 that is a warded more than 60 days after the effective date of this Act, unless the contractor agrees not to:

. . . (2) take any action to enforce any provision of an existing agreement with an employee or independent contractor that mandates that the employee or independent contractor resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hir ing, supervision, or retention. Pub. L. 111

- 118, § 8116, 123 Stat. 340 9, 3454

- 55 (2009). By regulation, the Amendment “does not apply to the acquisition of commercial items (including commercially available off

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items).” 48 C.F.R. § 222.7403 ( West 2010). The dispute here centers on the meaning of the clause “ any c laim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hir ing, supervision, o r retention.” [E mphasis added ]

. ReadyOne asserts that “the list of generic torts following ‘including’ are not additional torts to which the arbitration prohibition would apply,” but are “simply a descriptive list of some of the type of torts that could arise out of sexual assault or harassment.” Carreon , on the other hand, posits that, when read in t he disjunctive, the conjunction “or” serve s to identify the types of claims to which the Amendment applies and to cast them as claims independent of one another. Thus, according to Carreon , the phrase “or negligent hir ing, supervision, or retention” is independent of an d does not modify the phrase “ any tort related to or arising out of sexual assault or harassment, including . . . .” We disagree.
W hen id entifying the types of claims not subject to arbitration, the Amendment begins by listing title VII claims, followed by the clause “or any tort related to or arising out of sexual assault or harassment,” which in turn is followed by the adjectival phrase “ including assault and battery, intentional infliction of emotion al distress, false imprisonment

. . . .” The concluding phrase “ or negligent hir ing, supervision, or retention” immediately follows the beginning of the adjectival phrase identifying torts th at fall in the class of claims related to or arising out of sexual assault or harassment. Applying the doctrine of ejusdem generis in conjunction with the maxim noscitur a
sociis and the last antecedent rule, we conclude that the phrase “ or negligent hir i ng, supervision, or retention ” refers only to claims “such like” the class of claims immediately preceding the use of7

the present participle “including,” i.e. , tort s related to or arising out of sexual assault or harassment. This is because negligent hiri ng, negligent supervision, and negligent retention are torts analogous to those expressly mentioned as the type of torts that could arise out of sexual assault or harassment

– assault and battery, intentional infliction of emotion al distress, and false imprisonment. Furthermore, because all of these torts are similar in nature, are grouped together, and follow the word “including,” which precedes the phrase “any tort related to or arising out of sexual assault or harassment,” they qualify the phrase and are therefore confined to it. Accordingly, the phrase “ or negligent hir ing, supervision, or retention ” was not intended to define a category of claims separate and apart from title VII claims or torts related to or arising out of

s exual assault or harassment. As noted above, Carreon argues that because the various types of claims and torts identified in the disputed clause are separated by the disjunctive “or,” they should be construed as alternative claims, separate from and indep endent of one another. However, the structure and composition of the statutory text belie this argument and compel the conclusion that “ negligent
hir ing, supervision, or retention ” are not claims separate from and independent of the other

non - arbitrable c laims identified in the statute

. If Carreon is correct that the phrase “ or negligent
hir ing, supervision, or retention ” identifies the third element in a list of three items, then a comma would have been placed between the conjunction “or” separating the phrases “ any claim under title
VII ” and “ any tort related to or arising out of sexual assault or harassment” to identify each of the three members in the series. The fact that the conjunction “or” between the phrases identifying
title VII claims and sexua l assault claims is not separated by a comma indicates that there are no more than two elements identified in the list of claims not subject to arbitration. Indeed, the use of8

the comma before the conjunction “or” to separate the phrase “ assault and batte ry, intentional infliction of emotional distress, false imprisonment” from “ negligent hir ing, supervision, or retention” denotes that the drafters of the Amendment used it as a serial comma to identify the disputed phrase as the final item in the list of t he torts encompassing sexual assault and harassment

. According to t he Oxford Style Manual , “[t] he [use of a serial comma] serves . . . to resolve ambiguity, particularly when any of the items are compound terms joined by a conjunction .” OXFORD STYLE MANU AL , Oxfor d University Press, 2002, p. 122 [E mphasis added ]

. Because the Franken Amendment does not apply to personal injury claims related to or arising out of negligent hiring, supervision, or retention, we hold that the trial court abused its discretion by ordering discovery concerning the applicability of the Franken Amendment to the arbitrability of Carreon ’s personal injury claims. 2. Inadequate Remedy by A ppeal As established above, Carreon seek s documents from ReadyOne to determine if it has federal contracts in excess of $1 million and if it manufactures items commercially available
off

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- shelf. This information is targeted to discover if ReadyOne is bound by the requirements of the Franken Amendment. Justification for the discovery of this information, however, requires that the type of claim alleged by Carreon

– a negligence claim in a non

- subscriber personal injury

case

– fall within the parameters of the Amendment. Because this type of claim is not encompassed by the Amendment, the discovery of the information ordered by the trial court is irrelevant and is therefore un du ly harassing and burdensome

. Such an error cannot be cured by ordinary appea l

. See Walker , 827 S.W.2d at 843 . Accordingly, we hold that ReadyOne h as no9

adequate remedy by appeal.

DISCOVERY ON DEFENSES TO ARBITRATION In its second and final issue, ReadyOne contends that “[t]he trial court abused its discretion in ordering discovery on [Carreon’s] mental capacity because [ he ] failed to raise a reasonable expectation that discovery would reveal that the arbitration agreement would be unenforceable on that ground .” We agree

. Applicable Law The law favors arbitration. In re FirstMerit Bank, N.A. , 52 S.W.3d 749, 756 (Tex. 2001). Therefore, t he party seeki ng to avoid arbitration bears the burden of proving a defense against arbitration. I

d

. To be entitled to pre

- arbitration discovery on a particular defense , the party opposing arbitration must show or provide a colorable basis or reason to believe that the discovery requested is material in establish ing the defense. See Barron v. Vanier , 190 S.W.3d 841, 849

- 50 (Tex.App.

- - Fort Worth 2006, no pet.)(holding that it is an abuse of discretion to deny additional jurisdictional discovery if movant shows that “further discovery might demonstrate facts sufficient to constitute a basis for jurisdiction” or “ makes a good

- faith showi ng, provides a colorable basis for, or makes a prima facie case of personal jurisdiction, or provides a reason to believe that discovery would reve al sufficient minimum contacts)

. ; Solgas Energy Ltd. v. Global Steel Holdings Ltd. , No. 04

- 06

- 00731

- CV, 2007 W L 1892206 , at *6

- 7 (Tex.App.

- - San Antonio July 3, 2007, no pet.)(mem. op.)( holding that trial court did not abuse its discretio n in determining that plaintiff’ s alter ego allegation did not entitle it to pursue additional discovery in an effort to establi sh an alter ego connection because plaintiff’s pleadings and evidence failed to show or provide a colorable basis for believing that further discovery might demonstrate facts sufficient to10

cons titute a basis for jurisdiction). Discussion 1. Abuse of Discretion Carreon failed to show or provide a colorable basis or reason to believe that discovery would be material in establishing that the arbitration agreement was invalid because he lacked the mental capacity to understand what he was signing

. In hi s response to ReadyOne’s motion to compel arbitration, Carreon alleged that he “lacked the capacity to contract in this case” because he “was under the influence of multiple prescription drugs” and “[,][a]s a result . . . [he] was intoxicated [when he sign ed the arbitration agreement.]

. ” In support of this allegation, Carreon submitted his affidavit. However, nothing in Carreon ’s affidavit indicates that he was so intoxicated that it rendered him materially incapable of reasoning and understanding

. While a n agreement is voidable due to intoxication , it is voidable only if “the intoxication [is] so excessive as to render the person incapable of exercising his judgment or understanding the nature of the agreement and the consequences of its execution.” Por twood v. Portwood , 109 S.W.2d 515, 524 (Tex.Civ.App.

-- Eastland 1937, writ dism’d)

. Carreon’s statement in his affidavit that he “was extremely inhibited in my ability to comprehend an d understand what I was signing” simply fails
to establish that he was i ncapacitated to the extent that he could not have understood and did not understand what he was signing. Nor does Carreon’s statement provide a colorable basis or reason to believe that discovery would be material in establishing that he was incapacitated to that extent. Mere inhibition as to comprehension and understanding does not equate to material incapacitation.
Carreon argues that the testimony in his affidavit vested the trial court with the discretion to11

permit discovery as to “whether . . . a va lid agreement to arbitrate [exists] under general contract principles” when the trial court “has concluded that it lacks complete information to summarily decide the issue

. . . .” However, this is not the applicable test to determine whether
pre - arbitration discovery on the validity of an arbitration agreement is warranted . As established above, when a trial court lacks sufficient information regarding the applicability of a defense to an arbitration agreement, it has the discretion to order pre - arbitration discovery

. See In re Houston Pipe Line Co. , 311 S.W.3d at 451 . However, it may do so only if it has a colorable basis or reason to believe that discovery w ill aid in that determination

. See Barron , 190 S.W.3d at 849

- 50; Solgas , 2007 WL 1 892206 , at *6

- 7. Adopting Carreon ’s position that pre - arbitration discovery is warranted when the trial court l acks sufficient information to summarily conclude that the arbitration agreement is valid would impermissibly shift the burden of persuasion from the party seeki ng to avoid arbitration to the party seeking to enforce arbitration. See In re FirstMerit Bank,
N.A. , 52 S.W.3d at 756 ( noting that party opposing arbitration bears the burden of proving a defense against arbit ration)

. In light of the foregoing , we hold that the trial court abuse d its discretion by ordering discovery on Carreon ’s defensive claim of mental incapacity

. 2. Inadequate Remedy by Appeal Carreon ’s failure to prove that the discovery he sought w ould be material in helping h im establish his de fense to arbitration did not provide the trial court with the basis required to order
pre - arbitration discovery

. Because t he trial court had no basis to compel ReadyOne to p roduce the information sought by Carreo n , the trial court’s discovery order was unjustifiably harassing and unduly burdensome

. Such an error cannot be cured by ordinary appeal

. See Walker , 82712

S.W.2d at 843 . Accordingly, we hold that ReadyOne h as no adequate remedy by appeal. CONCLUSION
W e conditionally grant ReadyOne’ s petition for writ of mandamus. We hereby direct the trial court to vacate its discovery order

. Mandamus will issue only if the trial court fails to act within ten days from the date of this opinion.

December 2 1, 2012 CHRISTOPHER ANTCLIFF, Justice Before McClure, C.J., Rivera, and Antcliff, JJ.