                            NUMBER 13-09-00249-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


                IN RE: BROCK SPECIALTY SERVICES, LTD.


                       On Petition for Writ of Mandamus.


                                   OPINION

            Before Justices Yañez, Rodriguez, and Benavides
                      Opinion by Justice Rodriguez

      Through a petition for writ of mandamus, relator, Brock Specialty Services, Ltd.

(“Brock”), seeks to compel the trial court to vacate its order denying Brock’s motion to

compel arbitration. We conditionally grant the writ.

                                     I. Background

      Jose Espinosa, the real-party-in interest, worked for Brock as a forklift driver. He

was injured in the course and scope of employment and filed a workers’ compensation

claim. His employment was later terminated. Espinosa brought suit against Brock alleging

that he was discharged in retaliation for filing a workers’ compensation claim. See TEX .
LAB. CODE ANN . § 451.001 (Vernon 2006). Brock filed a motion to compel arbitration under

the Federal Arbitration Act (“FAA”) based on an arbitration agreement signed by Espinosa.

See 9 U.S.C. §§ 1-16 (1999). The agreement, contained in Brock’s “Dispute Resolution

Policy,” provides, in part:

       1.     This Policy creates a mutual obligation to arbitrate, is governed by the
              Federal Arbitration Act, 9 U.S.C. § 1 et seq. and is effective as of July
              1, 2007 (“Effective Date”). This Policy applies to any dispute arising
              out of or related to employment or termination of employment with
              Brock Holdings III, Inc., or one of its affiliates, subsidiaries, or parent
              (the “Brock Group” 1). This Policy requires all such disputes that have
              not otherwise been resolved (“Disputes”) to be resolved only through
              final and binding arbitration and not by way of court or jury trial. Such
              Disputes, without limitation, include disputes arising out of or relating
              to: all issues of arbitrability, including but not limited to
              unconsionability and all grounds as may exist at law or in equity for
              the revocation of any contract, the interpretation or application of this
              Policy, employment application process, employment relationship, any
              customers, clients and/or any other person under contract with the
              Brock Group, all property upon which, and/or with which the employee
              may or has performed any work or services for or on behalf of any
              person, trade secrets, unfair competition, compensation, breaks and
              rest periods, termination, or harassment and claims arising under the
              Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans with
              Disabilities Act, Age Discrimination in Employment Act, Family
              Medical Leave Act, Fair Labor Standards Act, Employee Retirement
              Income Security Act, and federal, state, or other statutes and/or
              ordinances, if any, addressing the same or similar subject matters,
              and all other federal, state, or other statutory and common law claims
              including retaliation claims (but excluding other workers’
              compensation and unemployment insurance claims). . . .

       2.     The parties agree that they have engaged in transactions which may
              affect interstate commerce.

       3.     All Disputes shall be exclusively resolved by final and binding
              arbitration exclusively conducted under the Arbitration Rules in effect
              at the time of the arbitration demand of National Mediation Arbitration,
              Inc. (“NMAI”); provided however, any party may require, by written
              notice, that non-binding mediation be conducted in parallel with the
              arbitration demand process. At any time, a copy of such Arbitration
              Rules is available upon written request to the HR Department of the
              Brock Group. All Disputes shall be administered by NMAI and

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             conducted before one (1) NMAI Arbitrator. A demand for arbitration
             must be in writing and delivered by hand or first class mail to the other
             party within the applicable statute of limitations period. . . .

      ....

      7.     In the event any provision of this Dispute Resolution Policy is
             determined by a court of competent jurisdiction to be illegal, invalid[,]
             or unenforceable, the legality, validity[,] and enforceability of the
             remaining provisions shall not be affected thereby.

(Emphasis in original).

                                         II. FAA

      The FAA applies to transactions that involve interstate commerce. See 9 U.S.C. §

2 (2005). “Commerce” has been broadly defined and encompasses contracts relating to

interstate commerce. See In re Gardner Zemke Co., 978 S.W.2d 624, 626 (Tex. App.–El

Paso 1998, orig. proceeding). The FAA does not require a substantial effect on interstate

commerce; rather, it requires commerce to be involved or affected. See L & L Kempwood

Assocs., L.P. v. Omega Builders, Inc. (In re L & L Kempwood Assocs., L.P.), 9 S.W.3d

125, 127 (Tex. 1999) (orig. proceeding); In re Merrill Lynch Trust Co. FSB, 123 S.W.3d

549, 553 (Tex. App.–San Antonio 2003, orig. proceeding).

      The Dispute Resolution Policy expressly provides that it is governed by the FAA and

further states that the “parties agree that they have engaged in transactions which may

affect interstate commerce.” See In re People's Choice Home Loan, Inc., 225 S.W.3d 35,

40 (Tex. App.–El Paso 2005, orig. proceeding); In re Kellogg Brown & Root, 80 S.W.3d

611, 617 (Tex. App.–Houston [1st Dist.] 2002, orig. proceeding); In re Alamo Lumber Co.,

23 S.W.3d 577, 579 (Tex. App.–San Antonio 2000, orig. proceeding [leave denied]); see

also Volt Info. Scis. v. Bd. of Trs., 489 U.S. 468, 478-79 (1989). The FAA may govern a



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written arbitration clause enforced in Texas state court if the parties have expressly

contracted for the FAA's application. In re AdvancePCS Health, L.P., 172 S.W.3d 603,

605-06 & n.3 (Tex. 2005) (orig. proceeding) (per curiam). When parties have designated

the FAA to govern their arbitration agreement, their designation should be upheld. See id.

at 606 & n.3; see also In re Int'l Bank of Commerce, No. 13-07-00693-CV, 2008 Tex. App.

LEXIS 519, 16-17 (Tex. App.–Corpus Christi Jan. 18, 2008, orig. proceeding [mand.

denied] ) (mem. op) (collecting cases). Espinosa asserts defenses against arbitration,

generally, but does not contest the application of the FAA. Accordingly, pursuant to the

parties’ agreement, we apply the FAA.

       When a trial court erroneously denies a motion to arbitrate under the FAA,

mandamus is the appropriate remedy. In re Halliburton Co., 80 S.W.3d 566, 573 (Tex.

2002) (orig. proceeding); see 9 U.S.C.A. § 4 (2005) (providing, in part, that “[a] party

aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written

agreement for arbitration may petition . . . for an order directing that such arbitration

proceed in the manner provided for in such agreement”); Nabors Drilling USA, LP v.

Carpenter, 198 S.W.3d 240, 246 (Tex. App.–San Antonio 2006, orig. proceeding).

                                   III. Standard of Review

       A writ of mandamus will issue if the trial court has clearly abused its discretion and

there is no other adequate remedy of law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.

1992) (orig. proceeding). We may not substitute our judgment for that of the trial court

with respect to the resolution of factual issues or matters within the trial court’s discretion.

Id. at 839-40. The relator must show that the trial court could reasonably have reached

only one decision. Id. The reviewing court cannot disturb the trial court’s decision unless


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it is shown to be arbitrary and unreasonable. Id. With respect to the trial court’s decision

on legal issues, our review is much less deferential. Id. at 840. A trial court has no

discretion in determining what the law is or applying the law to the facts. Id. Thus, a clear

failure by the trial court to analyze or apply the law correctly will constitute an abuse of

discretion. Id.

                                   IV. Validity and Scope

       A party seeking to compel arbitration by a writ of mandamus must (1) establish the

existence of a valid agreement to arbitrate under the FAA, and (2) show that the claims in

dispute are within the scope of the agreement. In re Kellogg Brown & Root, Inc., 166

S.W.3d 732, 737 (Tex. 2005) (orig. proceeding). “Whether a valid arbitration agreement

exists is a legal question subject to de novo review.” In re D. Wilson Constr. Co., 196

S.W.3d 774, 781 (Tex. 2006) (orig. proceeding). In determining the validity of agreements

to arbitrate which are subject to the FAA, we generally apply state-law principles governing

the formation of contracts. In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 676 (Tex.

2006) (orig. proceeding) (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944

(1995)). If the trial court finds there is a valid agreement to arbitrate, the burden shifts to

the party opposing arbitration to prove his defenses. J.M. Davidson, Inc. v. Webster, 128

S.W.3d 223, 227 (Tex. 2003).

       Once a valid agreement to arbitrate has been established, the court must then

determine whether the arbitration agreement covers the nonmovants’ claims. In re

FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001) (orig. proceeding). To determine

whether an existing arbitration agreement covers a party’s claims, a court must “focus on

the complaint’s factual allegations rather than the legal causes of action asserted.” Id. at


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754. Federal policy embodied in the FAA favors agreements to arbitrate, and courts must

resolve any doubts about an arbitration agreement's scope in favor of arbitration. Id. at

753. If the arbitration agreement encompasses the claims and the party opposing

arbitration has failed to prove its defenses, the trial court has no discretion but to compel

arbitration and stay its own proceedings. Id. at 753-54; D.R. Horton, Inc. v. Brooks, 207

S.W.3d 862, 866-67 (Tex. App.–Houston [14th Dist.] 2006, no pet.); Feldman/Matz

Interests, L.L.P. v. Settlement Capital Corp., 140 S.W.3d 879, 883 (Tex. App.–Houston

[14th Dist.] 2004, no pet.).

       In the instant case, Espinosa signed the Dispute Resolution Policy and his

arguments do not deny the existence of this signed document. Accordingly, we conclude

that Brock has established the existence of an arbitration agreement. Moreover, given the

breadth of the arbitration agreement, including its express application to retaliation claims,

we conclude that the claims at issue in this lawsuit fall within the scope of this agreement.

See, e.g., FirstMerit Bank, N.A., 52 S.W.3d at 754.

                                        V. Defenses

       Having concluded that a valid arbitration agreement exists and Espinosa’s claims

fall within the scope of that agreement, we now turn our attention to Espinosa’s alleged

defenses to arbitration. See In re H.E. Butt Grocery Co., 17 S.W.3d 360, 367 (Tex.

App.–Houston [14th Dist.] 2000, orig. proceeding); City of Alamo v. Garcia, 878 S.W.2d

664, 665 (Tex. App.–Corpus Christi 1994, no writ).

       Espinosa asserts that the trial court did not abuse its discretion in refusing to compel

arbitration because impossibility renders Brock’s request for relief moot. He argues that

the arbitration clause included in his contract with Brock is unenforceable because NMAI,


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the arbitrator designated in the contract for resolution of disputes, is a defunct corporation

and has been so since August 22, 2003, when its corporate charter was forfeited. Thus,

it was not in existence at the time the employment contract at issue was formed on August

7, 2007. Espinosa further argues that because NMAI is defunct, the NMAI arbitration rules

do not exist, and there are no NMAI arbitrators, so ”performance has been therefore

rendered impossible.” Stated otherwise, Espinosa contends that the non-existence of the

designated arbitrator rendered performance of the arbitration clause impossible and,

therefore, excused the parties from being bound by it.

       Section 5 of the FAA provides:

       If in the agreement provision be made for a method of naming or appointing
       an arbitrator or arbitrators or an umpire, such method shall be followed; but
       if no method be provided therein, or if a method be provided and any party
       thereto shall fail to avail himself of such method, or if for any other reason
       there shall be a lapse in the naming of an arbitrator or arbitrators or umpire,
       or in filling a vacancy, then upon the application of either party to the
       controversy the court shall designate and appoint an arbitrator or arbitrators
       or umpire, as the case may require, who shall act under the said agreement
       with the same force and effect as if he or they had been specifically named
       therein; and unless otherwise provided in the agreement the arbitration shall
       be by a single arbitrator.

9 U.S.C. § 5; see also FirstMerit Bank, N.A., 52 S.W.3d at 757 (stating that the “FAA

permits the trial court to choose an alternate set of arbitrators”); Tex. Best Staff Leasing,

Inc. v. Herrera (In re Tex. Best Staff Leasing, Inc.), Nos. 01-08-00296-CV, 01-08-00418-

CV, 2008 Tex. App. LEXIS 7715, at *13-15 (Tex. App.–Houston [1st Dist.] Oct. 9, 2008,

no pet.) (appeal & orig. proceeding) (mem. op.) (concluding that relator had waived the

applicability of section five of the FAA by failing to present the issue to the trial court); cf.

TEX . CIV. PRAC . & REM . CODE ANN . § 171.041(b) (Vernon 2005) (providing for the




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substitution of arbitrators where the agreed method of appointment of arbitrators “fails or

cannot be followed” under the Texas Arbitration Act).

       Section five of the FAA has been utilized in situations like that herein, where the

arbitrator specified in the contract was no longer in existence. See, e.g., Brown v. ITT

Consumer Fin. Corp., 211 F.3d 1217, 1222 (11th Cir. 2000); Stinson v. America's Home

Place, Inc., 108 F. Supp. 2d 1278, 1285 (M.D. Ala. 2000); Warren v. Am. Home Place, 718

So. 2d 45, 48-49 (Ala. 1998); Astra Footwear Ind., v. Harwyn Int’l Inc., 442 F.Supp. 907,

910-11 (S.D. N.Y. 1978); Haw. Teamsters & Allied Workers v. Honolulu Rapid Transit Co.,

343 F. Supp. 419, 425 (D. Haw. 1972). In Warren, for instance, the court found that there

was no evidence indicating that the identity of the arbitrator was an essential term of the

contract, and accordingly, rejected the plaintiff's argument that the unavailability of the

designated arbitrator rendered the arbitration clause unenforceable. See 718 So. 2d at 48.

As stated by the Eleventh Circuit Court of Appeals, “[o]nly if the choice of forum is an

integral part of the agreement to arbitrate, rather than an ‘ancillary logistical concern’ will

the failure of the chosen forum preclude arbitration.” Brown, 211 F.3d at 1222 (quoting

Zechman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 742 F. Supp. 1359, 1364 (N.D. Ill.

1990)).

       The same reasoning applies in the case currently before the Court. Although the

arbitrator specified in Espinosa’s contract with Brock is not now available to resolve their

dispute, there is no indication or evidence herein that the choice of NMAI as arbitrator or

NMAI’s rules for conducting arbitration was an integral or essential part of the agreement

to arbitrate. Instead, the language of the Dispute Resolution Policy indicates otherwise,

insofar as it provides that if a provision thereof is determined to be invalid or


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unenforceable, the legality, validity, and enforceability of the remaining provisions are to

remain unaffected. Accordingly, section five of the FAA dictates that the trial court enforce

the arbitration clause and choose another arbitrator.

                                    VI. Unconscionability

        In addition to contending that performance of the arbitration agreement was

rendered impossible, Espinosa also contends that the arbitration agreement is

unenforceable because it is unconscionable. The trial court’s order denying arbitration was

explicitly based on impossibility, and the record before us is not fully developed with regard

to Espinosa’s unconscionability arguments. Espinosa argues that this Court should not

address unconscionability given the trial court’s express rationale for its decision. In

contrast, Brock asks us to conclude that Espinosa has waived his unconscionability

arguments.

        This Court recently addressed the question whether our interlocutory review of

arbitration orders should consider alternative grounds for affirming the trial court’s order

when the challenged order specifically sets forth the basis for its ruling. See Int’l Bank of

Commerce, 2008 Tex. App. LEXIS 519, at *41-*43. The Fourteenth Court addressed our

analysis therein as follows:

       Relators rely on In re International Bank of Commerce in support of their
       position that summary judgment rules have no application here. In that case,
       the trial court refused to compel arbitration based on its determination that
       the bank had waived its right to arbitrate. The bank challenged that finding
       in its petition for writ of mandamus, but failed to address the other defenses
       to arbitration that real parties in interest had raised in the trial court. The
       issue in the mandamus proceeding was whether the bank was required to
       challenge the other potential grounds to defeat arbitration that were not
       expressly ruled on by the trial court.

       The court of appeals . . . recited the summary judgment rule that, when the
       court states the basis for its ruling, an appellant is required to attack only the
       stated ground for the ruling. The court of appeals will usually decline to

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        address the alternative grounds and, instead, remand the case to the trial
        court for consideration of the additional grounds. However, when the parties
        raise the alternative grounds, the court of appeals, in the interest of judicial
        economy, may rule on those grounds presented to the trial court, but not
        expressly ruled on . . . . It is apparent that In re International Bank of
        Commerce relied, at least in part, on summary judgment rules and therefore
        does not offer support to relators' position that summary judgment rules are
        inapplicable to original proceedings.

In re TCW Global Project Fund II, Ltd., 274 S.W.3d 166, 170 (Tex. App.–Houston [14 Dist.]

2008, orig. proceeding) (internal citations omitted). We agree with the Fourteenth Court’s

assessment that the relators from that case misinterpreted our holding in International

Bank of Commerce.

        In the interest of judicial economy, appellate courts have discretion to consider

alternate grounds to affirm the trial court’s order when those grounds were presented to

the trial court but not expressly ruled upon, when the parties raise them for review, and

when the record is well developed with regard to those alternate grounds. See Int’l Bank

of Commerce, 2008 Tex. App. LEXIS 519, at *43. Similarly, when the record is not fully

developed with respect to those alternative grounds, appellate courts should refrain from

addressing those issues beyond the trial court’s express basis for its ruling. See id. To

hold otherwise would grossly undermine judicial economy insofar as parties would have

an incentive to fully develop the record on superfluous grounds even after the trial court

has ruled in the party’s favor. This reasoning is well established in the summary judgment

context,1 and we see no reason why it should not apply in the context of our interlocutory

review of arbitration orders.




        1
          Compare State Farm Fire & Cas. Co. v. S.S., 858 S.W .2d 374, 380 (Tex. 1993) (refraining from
considering alternative grounds), with Cincinnati Life Ins. Co. v. Cates, 927 S.W .2d 623, 624 (Tex. 1996)
(explaining when the interest of judicial econom y is best served by addressing alternative grounds).

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       In this case, the record is not fully developed with respect to Espinosa’s

unconscionability argument, and once the trial court expressed an inclination to rule in

favor of Espinosa based on his impossibility argument, Espinosa had no incentive to fully

develop the record on unconsionability. Accordingly, we do not address the issue of

unconscionability herein.

                                      VI. Conclusion

       We conclude that the trial court erroneously denied Brock’s motion to compel

arbitration. Accordingly, we conditionally grant Brock’s petition for writ of mandamus and

direct the trial court to order these claims to arbitration under the FAA. The writ of

mandamus will issue only if the trial court fails to comply.



                                                    NELDA V. RODRIGUEZ
                                                    Justice

Opinion delivered and filed
this 29th day of May, 2009.




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