COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MOUNTAIN VIEW HEALTH & 

REHABILITATION CENTER, INC., 

CREATIVE SOLUTIONS IN 

HEALTHCARE, INC., and LIDIA MOYA, 

 Appellants, 

v. 

MARY HORTON KEELE, 

 Appellee. 

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§ 

§ 

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No. 08-23-00033-CV

Appeal from the 

210th Judicial District Court

of El Paso County, Texas 

(TC# 2022DCV1585 ) 

MEMORANDUM OPINION

This is an interlocutory appeal from an order denying a motion to compel arbitration filed 

by Appellants Mountain View Health & Rehabilitation Center, Inc., Creative Solutions in 

Healthcare, Inc., and Lidia Moya (collectively, Premises Parties) seeking to compel Appellee Mary 

Horton Keele (Keele) to arbitrate her premises liability and negligence claims against them. For 

the reasons set forth below, we reverse. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Keele’s lawsuit

Keele filed a lawsuit against the Premises Parties, alleging that on or about May 26, 2020, 
2

she “was on the premises owned, operated and controlled by Defendants located at 1600 

Murchison Dr., El Paso, Texas 79902, as an employee when she walked into a patient room and 

slipped and fell as a result of water on the floor.”1

Keele brought a claim for “premise liability,” contending that “[w]hile upon Defendants 

premises, Plaintiff suffered bodily injuries as a direct result of the fall proximately caused by a 

dangerous condition, which Defendant knew, or in the exercise of ordinary care, should have 

known existed.” She further alleged that “Defendant, its agents, servants and employees 

negligently caused and/or negligently permitted such condition to exist and/or negligently failed 

to appropriately warn Plaintiff of the condition of the premises, despite the fact that Defendants, 

its agents, servants and employees knew, or in the exercise of ordinary care, should have known 

of the existence of the condition and that there was a likelihood of someone being injured as 

happened to Plaintiff.” In the alternative, Keele alleged that the Premises Parties were negligent in 

that they owed a duty of care to Keele, which they breached, and which in turn was the “proximate

cause of the injury and the resulting damages to Plaintiff.”

Keele further alleged that Defendant Mountain View Rehabilitation Center, Inc. “had a 

non-delegable duty to provide a safe workplace to its employees” as required by the Labor Code, 

and that “Defendant failed to ensure a safe workplace for Plaintiff.” Keele additionally alleged in 

this same paragraph that: “Defendant failed to become a subscriber under the Worker’s 

Compensation Act of this State.” Keele also included a series of paragraphs in which she alleged 

that the Premises Parties were negligent in a variety of ways, including their failure to provide her 

1 Keele also named “Encore Health Care, LLC” as a fourth defendant. Encore was a party to the motion to compel 

arbitration, but is not a party to this appeal.
3

with a safe workplace and their failure to properly train and supervise their employees.2

In her request for damages, Keele alleged that she had “undergone medical treatment 

including surgical procedure, all of which were brought about by Defendants’ negligence in failing 

to adhere to its non-delegable duty to provide a reasonably safe workplace.” Keele sought 

compensatory damages within the limits of the trial court’s jurisdiction, and further sought an 

award of punitive damages, asserting that the Premises Parties were liable for “gross negligence.”

B. The motion to compel arbitration 

After filing answers to Keele’s petition, the Premises Parties filed a joint motion to dismiss, 

or in the alternative, to compel arbitration, alleging that Keele had signed two documents when 

she was initially hired on September 13, 2018, expressing her agreement to arbitrate any 

employment-related claims she might have. The motion referred to all “defendants” as being 

Keele’s employer and referred to the documents that Keele signed as being with all “defendants” 

as well. The Premises Parties attached both documents as exhibits to the motion and argued that 

the documents clearly established the “existence of a binding arbitration agreement and that 

[Keele’s] claims clearly fall within the scope of that agreement.”

The first document was entitled “Dispute Resolution and Arbitration Policy” (the 

Arbitration Policy), and stated: “It is the policy of the facility that the initiation and/or continuation 

of employment with the facility after notice of this arbitration policy constitutes assent, acceptance, 

consent, and consideration for this agreement to arbitrate, both during the time of employment and 

after termination.” The Arbitration Policy further specified that claims subject to arbitration would 

2 Keele’s pleading did not separately describe Appellant Moya’s individual participation or involvement in the alleged 

events, although it did identify Moya as “the DOA of Mountain View Rehabilitation Center, Inc.” Moya is identified 

as the “Director of Nursing—Mountain View Health & Rehabilitation Center” in Creative Solutions’ discovery 

responses.
4

include “claims for negligence, gross negligence, on-the-job injury; all lawsuits, claims, issues and 

disputes connected to, related to, arising from, accruing from and/or arising out of the employment 

relationship between the employee and the facility.” The Arbitration Policy further stated that 

arbitration would be the “exclusive method” for resolving such claims between the employee and 

the facility, and would be “mutually binding” on them as well as on “their successors, subsidiaries, 

affiliates, assigns, beneficiaries, heirs, children, spouses, parents and legal representatives.” The 

Arbitration Policy, however, did not provide a definition of the term “facility.”

The second document was entitled “Receipt, Safety, Pledge and Arbitration 

Acknowledgment,” and stated that by her signature, Keele was acknowledging receipt of a 

“Summary Plan Description” (SPD Acknowledgment). In addition to stating that she was agreeing 

to follow various “safety rules of the Company” and to notify her supervisor in the event that she 

was injured on the job, the SPD Acknowledgment stated: 

I also acknowledge that this SPD includes a mandatory company policy requiring 

that claims or disputes relating to the cause of an on-the-job injury (that 

cannot otherwise be resolved between the Company and me) must be 

submitted to an arbitrator, rather than a judge and jury court. I understand that 

by receiving this SPD and becoming employed (or continuing my employment) 

with the Company at any time on or after May 1, 2009. I am accepting and agreeing 

to comply with these arbitration requirements.” (emphasis in the original).

The SPD Acknowledgment did not define the term “Company.”

Both documents were hand-signed and dated 9/13/2018 by Keele, who was identified as 

the “employee” in the signature blocks. Both documents were hand-signed and dated by another 

individual—Savannah Hayes—that same day. The Arbitration Policy identified Ms. Hayes as the 

“HR Coord. or Administrator” on the signature block but did not identify the entity that employed 

her. The SPD Acknowledgment similarly identified the Ms. Hayes as the “Facility HR or Admin.” 

on the signature block but also failed to identify the entity that employed her.
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In opposing the motion to compel arbitration, Keele argued that the Premises Parties did 

not establish the existence of a valid and enforceable arbitration agreement, as there was no 

“meeting of the minds” regarding the entity with whom she was agreeing to arbitrate, given the 

failure to identify the other party to the agreement in the documents. In her opposition, however, 

Keele appeared to acknowledge that any documents she signed on the day she was hired were 

solely with Creative Solutions, and she claimed that Mountain View therefore had no right to 

enforce the arbitration agreement against her. Keele attached an affidavit in which she explained

that she had previously worked for Creative Solutions in another Texas city and she sought to be 

rehired by them when she moved to El Paso. Although she acknowledged she applied for the job 

at Mountain View and worked there and was injured there, she maintained a belief that Creative 

Solutions was her employer and any agreements she had were with Creative Solutions rather than 

Mountain View. According to her affidavit, she did not realize Mountain View was claiming to be 

her employer and/or was claiming she had agreed to arbitrate her claims with it, until her attorney 

informed her of the claims made in the motion to compel arbitration. Although Keele stated that 

she believed Creative Solutions—rather than Mountain View—was her employer and Creative 

Solutions had given her the documents to sign, she argued that Creative Solutions had created a 

question of fact regarding its right to enforce the agreement by stating in its discovery responses

that it was not a “proper party” to the litigation.

In her opposition, Keele also raised several affirmative defenses to enforcement of the 

arbitration agreement, contending: she did not receive notice of the agreement; the agreement was 

substantively unconscionable due to the fees she would be required to pay to participate in the 

arbitration proceeding—mistakenly referring to the fee set for commercial arbitration by the AAA; 

and the agreement was procedurally unconscionable, as she was given a “stack of documents to 
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sign and immediately return” in order to obtain employment, no one explained the agreement to 

her, and the “Defendants took advantage of [her] disparate bargaining ability” in requiring her to 

sign the documents.3

Keele asserted it was necessary for the trial court to hold a “Tipps” evidentiary hearing at 

which the Premises Parties would be required to demonstrate that they met their burden of 

establishing the arbitration agreement’s validity and enforceability.4

The Premises Parties did not file a reply to Keele’s response to the motion to compel. 

C. The trial court’s ruling 

The trial court held a Zoom hearing on the motion to compel arbitration, but none of the 

parties provided any additional evidence and instead only made legal arguments based on the 

existing record. Following the hearing, the trial court denied the motion to compel arbitration

without specifying its reasons. This appeal followed.

3 Keele no longer relies on any of these arguments in her appellate briefing, and we agree with the Premises Parties

that the arguments lack merit. First, as the Premises Parties pointed out in the trial court without contradiction, Keele 

mistakenly believed that the American Arbitration Association (AAA), which was the named arbitrator in the 

Arbitration Policy, would charge her the fee for commercial arbitration ($5,100), when in fact the AAA’s fee for 

arbitration under the employment workplace schedule is $300. Second, the fact that there may have been inequality 

in the parties’ bargaining power does not, standing alone, support a finding of procedural unconscionability in the 

absence of any allegations of fraud or misrepresentation, which Keele did not allege. See APC Home Health Services, 

Inc. v. Martinez, 600 S.W.3d 381, 395 (Tex. App.—El Paso 2019, no pet.) (recognizing that “unequal bargaining 

power does not establish grounds for invalidating an arbitration agreement absent a well-supported claim that the 

agreement resulted from the sort of fraud or overwhelming economic power that would provide grounds for revocation 

of any contract”); see also In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005) (per curiam) (“Absent fraud, 

misrepresentation, or deceit, a party is bound by the terms of the contract he signed, regardless of whether he read it 

or thought it had different terms.”). We further note that Keele complains for the first time on appeal about the costshifting provision in the Arbitration Policy that gives the arbitrator the discretion to grant attorney fees to the prevailing 

party, which she contends on appeal renders the agreement substantively unconscionable. Here, because Keele failed 

to raise this issue in the trial court, we are not able to consider it on appeal. See APC Home Health Services Inc., 600 

S.W.3d at 389 (an appellate court is “limited to considering the grounds presented to the trial court by the party 

resisting arbitration”). 

4 See Jack B. Anglin Co. Inc. v. Tipps, 842 S.W.2d 266 (Tex. 1992) (when a factual issue exists that requires resolution 

before a trial court may determine whether to grant a motion to compel arbitration, the court must hold an evidentiary 

hearing to resolve the issue).
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ISSUE ON APPEAL

In one global issue, the Premises Parties contend the trial court erred by denying their 

motion to compel arbitration, arguing: (1) they established that a valid and enforceable arbitration 

agreement existed, to which both parties assented; and (2) Keele failed to meet her burden of 

establishing her affirmative defenses to arbitration.

APPLICABLE LAW AND STANDARD OF REVIEW 

A. Applicable law

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 that a valid arbitration 

agreement exists and the claims raised fall within the 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); see also Ridge Nat. Res., 

L.L.C. v. Double Eagle Royalty, L.P., 564 S.W.3d 105, 132 (Tex. App.—El Paso 2018). This 

includes establishing that 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, the question of whether a valid arbitration agreement exists includes proving the other 
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party consented to the agreement); see also Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford 

Junior Univ., 489 U.S. 468, 479, (1989) (recognizing that arbitration “is a matter of consent, not 

coercion”). Under standard contract principles, the 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 In 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.”).

However, “despite strong presumptions that favor arbitration, a valid agreement to arbitrate is a 

settled, threshold requirement to compel arbitration.” Kmart Stores of Tex. L.L.C. v. Ramirez, 510 

S.W.3d 559, 564 (Tex. App.—El Paso 2016) (quoting In re Estate of Guerrero, 465 S.W.3d 693, 

699 (Tex. App.—Houston [14th Dist.] 2015, pet. denied)). 

If the moving party meets its burden to establish 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 contract, 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, & Williams, 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)). 

B. Standard of review

We review a trial court’s order denying a motion to compel arbitration for an abuse of 

discretion. APC Home Health Services, Inc. v. Martinez, 600 S.W.3d 381, 389 (Tex. App.—El 

Paso 2019, no pet.) (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 enforceable 
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arbitration agreement, the court has abused its discretion. In re Odyssey Healthcare, Inc., 310 

S.W.3d 419, 422 (Tex. 2010) (per curiam) (orig. proceeding) (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 227;

see also Casa Ford, Inc. v. Warner, 656 S.W.3d 816, 820 (Tex. App.—El Paso 2022, no pet.). An

appellate court 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. 

WHETHER THE PREMISES PARTIES MET THEIR BURDEN OF 

ESTABLISHING A VALID ARBITRATION AGREEMENT

In addressing whether the Premises Parties met their burden to establish a valid and 

enforceable arbitration agreement, we consider two fundamental requirements: authentication and 

a meeting of the minds.

A. Authentication

The first issue we consider is whether the Arbitration Policy and the SPD Acknowledgment 

the Premises Parties attached to their motion to compel arbitration were properly authenticated, 

and if not, whether lack of authentication supports the trial court’s denial of the motion. We agree 

with Keele that the Premises Parties had the burden of ensuring that any documents they attached 

in support of their motion were properly authenticated for the documents to be admissible as 

evidence. See Ridge Nat. Res., 564 S.W.3d at 122 (recognizing that a party moving to compel 

arbitration bears the initial evidentiary burden of proving the existence of a valid arbitration 

agreement, which includes “threshold evidentiary issues such as authenticity”); Kmart Stores of 

Tex., 510 S.W.3d at 567-68 (discussing the need to authenticate documents attached to a motion 

to compel arbitration as a prerequisite to admissibility). 
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The authentication requirement “is satisfied by evidence sufficient to support a finding that 

the matter in question is what its proponent claims.” United Rentals, Inc. v. Smith, 445 S.W.3d 

808, 813 (Tex. App.—El Paso 2014, no pet.) (citing TEX.R. EVID. 901(a)). Texas Rule of Evidence

901(b) provides a non-exclusive list of methods for authenticating a document, including

presenting testimony of a witness with knowledge; providing either an expert or nonexpert opinion 

regarding the authenticity of a party’s signature on the document; or any other “method of 

authentication or identification allowed by a statute or other rule prescribed under statutory 

authority.” TEX. R. EVID. 901(b). However, as we have previously recognized, “[s]imply attaching 

a document to a pleading neither makes the document admissible as evidence, dispenses with 

proper foundational evidentiary requirements, or relieves a litigant of complying with other 

admissibility requirements.” Wright, 469 S.W.3d at 751 (citing United Rentals, Inc., 445 S.W.3d 

at 814); see also Guerrero, 465 S.W.3d at 703 (recognizing same); Constant v. Gillespie, No. 05-

20-00734-CV, 2022 WL 1564555, at *6 (Tex. App.—Dallas May 18, 2022, no pet.) (mem. op.)

(holding, as a matter of law, that movant’s “mere attachment of the Purported Agreements as 

exhibits to his motion and supplemental motion, without more, submitted no evidence of a valid 

arbitration agreement to the trial court”). 

As the Premises Parties point out, Keele did not raise this issue in the trial court. However, 

when, as here, there is a complete absence of authentication, such a deficiency is considered a 

defect of substance that may be raised for the first time on appeal.5 Houle v. Capital One Bank 

5 As we recognized in Houle, there is a distinction between defects in the form of an affidavit authenticating a 

document—which must be raised in the trial court to be preserved—and situations in which there is a complete lack 

of authentication—which can be raised for the first time on appeal. See Houle v. Capital One Bank (USA), N.A., 570 

S.W.3d 364, 369–70 (Tex. App.—El Paso 2018, pet. denied) (citing Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161,

166 (Tex. 2018) (recognizing the distinction between substantive and formal defects in authentication in terms of error 

preservation)). This is because the “complete failure to authenticate the exhibits renders the evidence incompetent and 

amounts to a substantive defect that is not waived by the failure to preserve error in the trial court.” Brown v. Tarbert, 
11

(USA), N.A., 570 S.W.3d 364, 369–70 (Tex. App.—El Paso 2018, pet. denied); see also Guerrero, 

465 S.W.3d at 706–07 (“[a] complete absence of authentication is a defect of substance that is not 

waived by a party failing to object and may be urged for the first time on appeal”); Perkins v. 

Crittenden, 462 S.W.2d 565, 568 (Tex. 1970) (reversing summary judgment because an unverified 

copy of a promissory note was offered as summary-judgment evidence, even though the complaint 

was raised for the first time on appeal); Mansions in the Forest L.P., v. Montgomery Country, 365 

S.W.3d 314, 317 (Tex. 2012) (reaffirming holding in Perkins).

We nevertheless find that Keele waived this issue, as she made several statements in the 

trial court, both in her affidavit and in her pleadings, acknowledging that she signed the documents 

in question but claiming she did not understand the import of the documents and/or who the other 

signatory was.

6 In addition, during the hearing on the motion to compel arbitration, the Premises 

Parties’ attorneys repeatedly asserted that Keele’s signature on the documents was demonstrative 

of her agreement to arbitrate, and Keele’s attorney never denied that Keele’s signature was on the 

documents. Instead, Keele’s argument at the hearing centered almost exclusively on her contention 

that there was no “meeting of the minds” with respect to the entity with whom Keele was agreeing 

to arbitrate when she signed the documents.

Simply put, when, as here, a party has acknowledged signing a document, she waives the 

LLC, 616 S.W.3d 159, 170 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (C.J. Frost, concurring) (citing In re 

Estate of Guerrero, 465 S.W.3d 693, 705, 705-08 (Tex. App.–Houston [14th Dist.] 2015, pet. denied)).

6 In her affidavit, Keele acknowledged she signed the documents in question but complained that she “would not have 

signed” either document “if it had been explained to me what arbitration was.” In addition, referring to the Arbitration 

Policy, Keele complained in her affidavit that she did not receive “advice from [her] lawyer at any point prior to 

signing this document” (emphasis added). In other words, she admitted she signed the documents but contended she 

simply did not understand their nature or import. Keele’s opposition to the motion to compel similarly acknowledged 

that the Arbitration Policy “contain[ed her] signature” and that she was “required” to sign both documents.
12

right to contest its authenticity.7 See Gracepoint Holding Co., LLC v. FJR Sand, Inc., No. 01-19-

00574-CV, 2020 WL 61594, at *4 (Tex. App.—Houston [1st Dist.] Jan. 7, 2020, no pet.) (mem. 

op.) (where plaintiff admitted in her pleadings that she had entered into the agreement containing

the arbitration provision, plaintiff waived her right to challenge the agreement for lack of 

authenticity); see also Bell v. Koch Foods of Miss., LLC, 358 Fed. Appx. 498, 501 (5th Cir. 2009)

(per curiam) (overruling an appellate complaint concerning an alleged lack of authentication of 

arbitration agreements when the party opposing arbitration did not object to their authenticity in 

the trial court and did not argue that the agreements had not been properly signed); In re Whitfield, 

115 S.W.3d 753, 755-56 (Tex. App.—Beaumont 2003, no pet.) (relying on a party’s admission 

that arbitration agreements existed in finding that the party waived her right to challenge their 

authenticity). 

We therefore assume that Keele did in fact sign the documents in question and the exhibits 

in question were genuine copies.

B. Meeting of the minds 

We next turn to the pivotal question of whether the Premises Parties met their burden to

establish that there was a “meeting of the minds” regarding the identity of the party or parties with 

whom Keele was agreeing to arbitrate her claims, such as to render the arbitration agreement valid 

and enforceable. We conclude that the Premises Parties failed to meet this burden but are 

nevertheless entitled to compel arbitration under the Texas Supreme Court’s holding in In re 

7 We recognize that if Keele had denied signing the agreement, we would reach a different result, as the mere fact that 

her signature purportedly appeared on the document, without more to authenticate it, would not be sufficient to find 

the document admissible as evidence. See United Rentals, Inc. v. Smith, 445 S.W.3d 808, 814 (Tex. App.—El Paso 

2014, no pet.) (recognizing that although a party’s signature on a written contract is strong evidence that the party 

unconditionally assented to its terms, if the party denies she signed the agreement, there must be some evidence 

admitted in the trial court to support a finding that the signature was authentic). However, as set forth above, Keele 

did not challenge the authenticity of her signature or the existence of the agreement.
13

Macy’s Tex., Inc., 291 S.W.3d 418 (Tex. 2009).

(1) Applicable law

As explained above, because an arbitration agreement is a creature of contract, the party 

“attempting to enforce an arbitration agreement must show the agreement meets all requisite 

contract elements” in accordance with state law. J.M. Davidson, 128 S.W.3d at 228. Under Texas 

law, the elements needed to form a valid and binding contract are “(i) an offer; (ii) an acceptance 

in strict compliance with the terms of the offer; (iii) a meeting of the minds; (iv) each party’s 

consent to the terms; and (v) execution and delivery of the contract with the intent that it be mutual 

and binding.” Lucchese Boot Co. v. Rodriguez, 473 S.W.3d 373, 385 (Tex. App.—El Paso 2015, 

no pet.) (citing Karns v. Jalapeno Tree Holdings, L.L.C., 459 S.W.3d 683, 692 (Tex. App.—El 

Paso 2015, pet. denied)); see also Ridge Nat. Res., 564 S.W.3d at 119–20 (recognizing same 

elements necessary for formation of valid arbitration agreement). Therefore, as with any other 

contract, a “meeting of the minds” is necessary to form a binding arbitration agreement. See

Lucchese Boot Co. v. Licon, 473 S.W.3d 390, 400 (Tex. App.—El Paso 2015, no pet.) (citing

David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008)); see also Baby Dolls Topless 

Saloons, Inc. v. Sotero, 642 S.W.3d 583, 585-87 (Tex. 2022) (per curiam) (recognizing the need 

for a “meeting of the minds” on all essential terms in an arbitration agreement).

The term “meeting of the minds” refers to the parties’ “mutual understanding and assent to 

the agreement regarding the subject matter and the essential terms of the contract.” Izen v. Comm’n 

For Lawyer Discipline, 322 S.W.3d 308, 318 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); 

see also Principal Life Ins. Co. v. Revalen Dev., LLC, 358 S.W.3d 451, 455 (Tex. App.—Dallas 

2012, pet. denied) (recognizing that “[t]he term ‘meeting of the minds’ refers to the parties’ mutual 

understanding and assent to the expression of their agreement”); see also Gutierrez v. Rios, 621 
14

S.W.3d 907, 913 (Tex. App.—El Paso 2021, no pet.) (citing USAA Texas Lloyds Co. v. Menchaca, 

545 S.W.3d 479, 501 n.21 (Tex. 2018) (referring to the need for the parties to reach a meeting of 

the minds on the essential terms of the contract as “mutual assent”)). “Although often treated as a 

distinct element, meeting of the minds is a component of both offer and acceptance measured by 

what the parties said and did and not on their subjective state of mind.” Rodriguez, 473 S.W.3d at 

385–86; see also Domingo v. Mitchell, 257 S.W.3d 34, 40 (Tex. App.—Amarillo 2008, no pet.)

(recognizing that a “meeting of the minds” is not an independent element of a valid contract but is 

instead “a mutuality subpart of the offer and acceptance elements” or “a mutual understanding and 

assent to the expression of the parties’ agreement”). 

As we have previously recognized, the question of whether the parties have reached a 

“‘meeting of the minds,’ and therefore acceptance of an offer, is measured objectively according 

to what the parties said and did” and not based on their “subjective thoughts and beliefs.” Franco,

346 S.W.3d 605, 608; see also Lucchese Boot Co., 473 S.W.3d at 385-86 (recognizing same).

(2) Whether the Premises Parties were parties to the arbitration agreement

As noted above, Keele does not deny that she signed the Arbitration Policy or the SPD 

Acknowledgment; instead, she contends the documents are not enforceable, as neither document 

reflects the identity of the other signatory. Keele points to the general principle that “[i]n order to 

be legally binding, a contract must be sufficiently definite in its terms so that a court can understand 

what the promisor undertook.” Lucchese Boot Co., 473 S.W.3d at 386 (citing T.O. Stanley Boot 

Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992)). In other words, the contract must 

address all essential and material terms in a sufficiently definite manner to confirm that both parties 

actually intended to be contractually bound and understand the parties’ obligations. Fischer v. 

CTMI, L.L.C., 479 S.W.3d 231, 237 (Tex. 2016). And in turn, Keele contends that the identity of 
15

the contracting parties is a material term, and if the identity of the contracting parties cannot be 

determined from the face of the contract, the contract fails. See, e.g., McCalla v. Baker’s 

Campground, Inc., 416 S.W.3d 416, 418 (Tex. 2013) (per curiam) (recognizing that the identity 

of the parties to the sale, i.e., the transferor and transferee, is a material term in a contract for the 

sale of real estate). Thus, Keele concludes that because neither document identified who the other 

contracting party was, neither one is enforceable.

The Premises Parties respond that while not expressly identifying the other contracting 

party, both the Arbitration Policy and the SPD Acknowledgement made it clear Keele was agreeing 

to arbitrate any employment-related claims with her employer. In turn, they contend that Keele did 

not cite any authority, and they have not found any, to support the proposition that “in order for an 

arbitration agreement to be enforceable the employee must subjectively understand the exact name 

of her employer.” And they contend that “there is no dispute that [Keele] signed an arbitration 

agreement with her employer and as such whether she was correct on the name of her employer is 

immaterial because her agreement is to arbitrate disputes with her employer, which is precisely

what [the Premises Parties] asked the court to order.”

The Texas Supreme Court addressed a similar situation in a case where an employee 

working at a Macy’s store was injured on the job and filed a lawsuit naming Macy’s Texas, Inc. 

as her employer. In re Macy’s Tex., Inc., 291 S.W.3d 418, 419 (Tex. 2009) (per curiam). There, 

the defendant moved to compel arbitration, contending the employee had signed an arbitration 

agreement that bound her to arbitrate employment-related injury claims. Id. In response, while 

acknowledging she signed the agreement, the employee argued it did not specify that she was 

required to arbitrate with Macy’s Texas, Inc., and instead only stated she was agreeing to arbitrate 

with the “Company.” Id. And, as here, the employee pointed out that the agreement did not 
16

expressly define the term “Company.”

The agreement in Macy’s further stated that “[a]ll Texas employees of Federated 

Department Stores, Inc, Macy’s West, Inc., and Federated Systems Group, Inc. will be covered by 

this program [and] [r]eferences to the word ‘Company’ in this booklet will mean your particular

employer.” Id. Although the defendant provided an affidavit purporting to explain the relationship 

between the various Macy’s entities, the court found it insufficient, explaining that “[w]hile the 

trademark laws make it hard to believe Macy’s South or Macy’s West are not affiliated with 

Macy’s Inc., it was the defendant’s burden to prove they were,” and “the affidavit was conclusory 

rather than conclusive, failing to establish any basis for the affiant’s knowledge of corporate 

structure or attach any supporting documents whatsoever.” Id. The court further noted that “even 

if [the various Macy’s entities] were affiliates, treating affiliates as one entity for purposes of 

arbitration may be inconsistent with their separate creation.” Id.

The court nevertheless rejected the employee’s argument that the arbitration agreement 

was not valid or enforceable. Id. In particular, the court noted that the employee provided “no 

explanation [for] why she would agree with anyone other than her employer on a health-benefits 

plan or arbitration for on-the-job injuries.” Id. at 420. And the court further found it significant 

that the suit alleged a “failure to provide proper equipment and a safe workplace—both 

nondelegable duties owed by [an] employer.” Id. (citing Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 

215 (Tex. 2008)). In the end, the court held that because the employee had “agreed to arbitrate 

with her employer and purported to sue her employer, she [could not] avoid arbitration by raising 

factual disputes about her employer’s correct legal name.” Id. In so holding, the court noted that 

while the arbitration agreement was “certainly nonspecific” as to the identity of the employer, such

generality “serve[d] to avoid the kind of disputes about corporate divisions and affiliates that [the 
17

employee] trie[d] to raise.” Id at 419. 

Here, like the defendant in Macy’s, the Premises Parties seek to compel arbitration under 

documents Keele signed as the “employee,” which contain an agreement to arbitrate all “workrelated” claims with a non-specific entity referred to as “the company” or “facility.” However, 

unlike the defendant in Macy’s, the Premises Parties did not offer an affidavit or other evidence to 

show that any of them were Keele’s employer.

Instead, as to Defendant Mountain View Health & Rehabilitation Center, Inc., the Premises 

Parties argue that:

[Keele’s affidavit] stated that she went to the Mountain View Facility located at 

1600 Murchison El Paso, Texas, to apply for a job and fill out the necessary 

paperwork. . . . According to her pleadings, the injury she alleges she suffered while 

she was an employee occurred at 1600 Murchison Dr. El Paso, Texas, the location 

of Mountain View. . . . [Keele]’s pleadings also specifically allege that “Defendant 

Mountain View” had a duty to provide a safe workplace to its employee. . . . As 

such, [Keele]’s statements and pleadings establish that she knew her employer was 

in fact Mountain View and that she was entering into an agreement to arbitrate any 

workplace injury with Mountain View.

But this argument fails to address a crucial statement in Keele’s affidavit, namely, that at 

the time she signed the documents in question—i.e., when a meeting of the minds would need to 

have occurred—she believed she was applying to work for “Creative Solutions In Healthcare but 

known as Mountain View Health & Rehabilitation Center, Inc.” In other words, Keele believed

Mountain View was simply a trade name for Creative Solutions. While it is true that Keele’s 

pleading identifies Mountain View as her employer, the pleading does not suggest anything about 

who Keele believed her employer was at the time she signed the documents in question and thus 

cannot, as the Premises Parties contend, “establish that she knew her employer was in fact 

Mountain View and that she was entering into an agreement to arbitrate any workplace injury with 

Mountain View.”
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Further, as to Defendant Creative Solutions in Healthcare, Inc., the Premises Parties argue:

[T]he arbitration agreement expressly states that “this agreement to arbitrate applies 

to . . . all lawsuits . . . , claims, issues and disputes that the employee may now have 

or may in the future have against the facility and/or its parents, subsidiaries, 

affiliates, operators, boards, committees, executives, officers, partners, 

shareholders, directors, faculty, staff, employees and agents (collectively referred

hereafter as ‘the facility.’)”. . . As such, even if [Keele] believed that she was 

entering into an agreement with Creative, and assuming arguendo that belief had to 

be correct under the law, that arbitration agreement would apply to both Creative 

and Mountain View.

That is, if we understand correctly, the Premises Parties contend that Creative Solutions is 

a party to the arbitration agreement because it is Mountain View’s parent, subsidiary, affiliate, or 

operator. But the Premises Parties fail to point to any evidence in the record to support this 

contention, nor do they identify the particular type of relationship allegedly involved.8 Nor do the 

Premises Parties cite authority holding, for example, that any party named in a lawsuit who claims 

to fall under a related-parties clause in a relevant arbitration agreement is entitled to be taken at 

their word. 

In addition, as to Defendant Lidia Moya, her name appears in the Premises Parties’ initial 

appellate brief exactly twice—in the style and in the list of parties—and in their reply brief only 

once—in the style. That is, the Premises Parties present no argument, no evidence, and no authority 

to support granting Moya any form of relief in this appeal.

In sum, the Premises Parties have failed to meet their burden to show that a valid arbitration

agreement exists between Keele and any of the Premises Parties. However, under Macy’s, we must 

8 We only see evidence in the record of statements by Creative Solutions in discovery that it “is not a healthcare 

institution and did not provide medical care or treatment to Mary Horton Keele at any time, and therefore is not a 

proper party” and that it “denies any negligence with regard to the care and treatment rendered to Mary Horton Keele,”

suggesting it misunderstood the nature of Keele’s claims, which are plainly based on premises liability, not healthcare 

liability. At the hearing on the motion to compel arbitration, Keele’s counsel stated: “By their very own disclosures, 

they’re saying Creative Solutions is not a proper party. And my client is saying, I thought these were Creative 

Solutions’ documents. If they had not said that, Your Honor, I would not be here.”
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next consider Keele’s pleading. 

Like the employee’s pleading in Macy’s, Keele’s pleading implicates claims brought by an 

employee against an employer, alleging that “[o]n or about May 26, 2020, Plaintiff was on the 

premises owned, operated and controlled by Defendants . . . as an employee when she walked into 

a patient room and slipped and fell” (emphasis added). Further, specifically as to Mountain View, 

Keele’s pleading alleges “Defendant had a non-delegable duty to provide a safe workplace to its

employees”; “Defendant failed to ensure a safe workplace for Plaintiff”; and “Defendant failed to 

become a subscriber under the Worker’s Compensation Act of this State.” In addition, as to all 

three Premises Parties, Keele’s pleading alleges “These acts or omissions [by Defendants] were a 

proximate cause of the injuries and damages to Plaintiff: . . . [f]ailure to properly train, educate, 

instruct, and supervise [Keele] in the performance of her duties . . . [and] [f]ailing to enforce their 

rules, regulations, and guidelines to safeguard...employees such as [Keele].” In other words, 

Keele’s pleading identifies all three defendants as her employer and alleges claims against them 

in that capacity.

As a result, in the end, we conclude under Macy’s that because Keele agreed to arbitrate 

with a nonspecific employer then filed suit against specific parties alleging they were all her 

employer, she cannot now avoid arbitration with these parties by raising factual disputes about her 

employer’s correct legal name. Macy’s, 291 S.W.3d at 420; see also SSC Wimberley Operating 

Co., LLC v. Goodman, 665 S.W.3d 729, 737 (Tex. App.—San Antonio 2023, no pet.) (holding

that all six defendants were entitled to compel arbitration under an arbitration agreement between

the plaintiff and an unspecified employer, in part because the plaintiff’s pleading identified all 
20

defendants either as her employer or as an employee of her employer).

9

We reject Keele’s other arguments for the reasons explained above in footnote three.

Appellants’ Issue One is sustained. 

CONCLUSION

We reverse the trial court’s order denying the motion to compel arbitration and remand this

matter to the trial court to enter an order consistent with this opinion.

LISA J. SOTO, Justice

October 6, 2023

Before Rodriguez, C.J., Palafox, Soto, JJ.

Palafox, J., dissenting

9 The dissent views Macy’s as distinguishable in that the arbitration agreement there “identified ‘the Federated 

Department Stores, Inc.,’ as a party to the contract,” “further defined ‘the Company,’ as inclusive of ‘your particular 

employer,’” and “[m]oreover . . .detailed that employees of three corporate entities would be covered by its terms.” 

In the end, however, Macy’s focused on the fact that under the agreement, “‘the Company’ would mean ‘your 

particular employer’”—language the Supreme Court found to be nonspecific, but not fatally so: “This definition is 

certainly nonspecific, but it serves to avoid the kind of disputes about corporate divisions and affiliates that [the 

plaintiff] tries to raise here.” 291 S.W.3d 419 (Tex. 2009). Crucially, Macy’s expressly crafted an exception to the 

general rule stated in Merrill Lynch, the case relied on by the dissent for the proposition that an agreement to arbitrate 

with an entity does not extend to its affiliates. Id. at 419-20 (distinguishing In re Merrill Lynch Trust Co. FSB, 235 

S.W.3d 185, 191 (Tex. 2007)). That is, Macy’s held: “As [the plaintiff] agreed to arbitrate with her employer and 

purported to sue her employer, she cannot avoid arbitration by raising factual disputes about her employer’s correct 

legal name.” Id. at 420. That is precisely the situation Keele was in by unambiguously identifying Mountain View, 

Creative Solutions, and Moya as her employer.