REVERSE and REMAND; and Opinion Filed February 23, 2018.




                                                In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00647-CV

       DALLAS FOOD & BEVERAGE, LLC D/B/A BUCKS CABARET, Appellant
                                 V.
                         JOY LANTRIP, Appellee

                       On Appeal from the 191st Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DC-17-02080

                             MEMORANDUM OPINION
                           Before Justices Lang, Brown, and Whitehill
                                   Opinion by Justice Brown
       Appellant Dallas Food & Beverage, LLC d/b/a Buck’s Cabaret (Buck’s) appeals the trial

court’s order denying its motion to compel arbitration and stay or dismiss all claims. For the

following reasons, we reverse the trial court’s order and remand for entry of an order compelling

arbitration and granting an appropriate stay.

                                          BACKGROUND

       On November 28, 2016, appellee Joy Lantrip signed a Dancer Performance Lease

(“Lease”) to perform as an entertainer at Buck’s, a club in Dallas, Texas. Lantrip suffered severe

injuries in a single-car accident after leaving Buck’s on November 29, 2016. She brought this

action against Buck’s, asserting claims for negligence, gross negligence, and violations of the
Texas Dram Shop Act.1 According to Lantrip’s petition, Buck’s allowed her to drive from its

premises after she was served an excessive number of alcoholic beverages and even though it was

apparent she was obviously intoxicated to the extent she presented a clear danger to herself and

others. The petition further alleges Buck’s was negligent in requiring Lantrip to consume alcoholic

beverages, violating its duty to use ordinary care to provide a reasonably safe workplace.

          In response to Lantrip’s petition, Buck’s moved to compel arbitration, citing an arbitration

provision in the Lease. The provision, in relevant part, provides:

          … ANY CONTROVERSY, DISPUTE, OR CLAIM … ARISING OUT OF
          THIS LEASE OR OUT OF ENTERTAINER PERFORMING AND/OR
          WORKING AT THE CLUB AT ANY TIME, WHETHER CONTRACTUAL,
          IN TORT, OR BASED UPON COMMON LAW OR STATUTE, SHALL BY
          EXCLUSIVELY DECIDED BY BINDING ARBITRATION HELD
          PURSUANT TO THE FEDERAL ARBITRATION ACT….

          THE PARTIES WAIVE ANY RIGHT TO LITIGATE SUCH CLAIMS IN A
          COURT OF LAW, AND WAIVE THE RIGHT TO TRIAL BY JURY….

          THE ARBITRATOR SHALL HAVE EXCLUSIVE AUTHORITY TO
          RSESOLVE ANY DISPUTES OVER THE VALIDITY AND/OR
          ENFORCEABILITY OF ANY PART OF THIS LEASE, INCLUDING
          THESE ARBITRATION PROVISIONS….

Buck’s argued the provision required arbitration of Lantrip’s claims because the claims arose out

of her “performing and/or working at” Buck’s. Following a hearing, the trial court denied Buck’s

motion to compel arbitration, and Buck’s subsequently filed this interlocutory appeal.2

                                                         APPLICABLE LAW

          We review the denial of a motion to compel arbitration for an abuse of discretion. See

Ascendant Anesthesia PLLC v. Abazi, 348 S.W.3d 454, 458 (Tex. App.—Dallas 2011, no pet.).

We defer to factual determinations of the trial court that are supported by the record, but review

legal determinations de novo.                    In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex.


   1
       TEX. ALCO. BEV. CODE ANN. § 2.02(b) (West 2007).
   2
       See TEX. CIV. PRAC. & REM. CODE § 51.016 (West 2015) (authorizing interlocutory appeal from denial of motion to compel arbitration).

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2009) (orig. proceeding). Whether an arbitration agreement imposes a duty to arbitrate is a

question of law for the court and subject to de novo review. Id.

             A defendant seeking to compel arbitration under the Federal Arbitration Act (FAA)3 must

establish the existence of a valid arbitration agreement between the parties and that the plaintiff’s

claims fall within the scope of the agreement. In re Dillard Dept. Stores, Inc., 186 S.W.3d 514,

515 (Tex. 2006) (orig. proceeding) (per curiam). The burden then shifts to the plaintiff to establish

an affirmative defense, if any, enforcing arbitration. Sidley Austin Brown & Wood, LLP v. J.A.

Green Dev. Corp., 327 S.W.3d 859, 863 (Tex. App.—Dallas 2010, no pet.). If the arbitration

agreement encompasses the plaintiff’s claims and the plaintiff fails to prove any defenses, the trial

court has no discretion and must compel arbitration and stay the proceedings. In re FirstMerit

Bank, N.A., 52 S.W.3d 749, 753-54 (Tex. 2001) (orig. proceeding).

             State law governs whether parties agreed to arbitrate, but federal law governs whether a

dispute is subject to arbitration. Labatt Food Serv., L.P., 279 S.W.3d at 643; In re Weekley Homes,

L.P., 180 S.W.3d 127, 130 (Tex. 2005) (orig. proceeding) (citing Moses H. Cone Mem’l Hosp. v.

Mercury Constr. Corp., 460 U.S.1, 24 (1983)). To determine whether a claim falls within the

scope of an arbitration agreement, a court must focus on a petition’s factual allegations rather than

the causes of action asserted. Pilot Travel Ctrs., LLC v. McCray, 416 S.W.3d 167, 177 (Tex.

App.—Dallas 2013, no pet.); VSR Fin. Servs., Inc. v. McLendon, 409 S.W.3d 817, 831-32 (Tex.

App.—Dallas 2013, no pet).

             Federal law favors arbitration, and any doubts as to whether claims fall within the scope of

a valid arbitration agreement must be resolved in favor of arbitration. Moses H. Cone Memorial

Hosp., 460 U.S. at 24-25; Cantella & Co., Inc., v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996) (per



     3
          See 9 U.S.C. §§ 1-16 (2013). Here, the Lease provides, and neither party disputes, that the FAA applies to the arbitrability of Lantrip’s
claims.

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curiam). “The policy in favor of enforcing arbitration agreements is so compelling that a court

should not deny arbitration ‘unless it can be said with positive assurance that an arbitration clause

is not susceptible of an interpretation which would cover the dispute at issue.’” Prudential Sec.

Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex. 1995) (orig. proceeding) (per curiam) (quoting

Commerce Park at DFW Freeport v. Mardian Constr. Co., 729 F.2d 334, 338 (5th Cir. 1984))

(emphasis added).

                                              ANALYSIS

       In a single issue, Buck’s asserts the trial court erred in denying its motion to compel

arbitration. Buck’s argues the Lease’s arbitration provision is a valid, enforceable agreement to

arbitrate and Lantrip’s claims, which arise out of her allegations that she was overserved alcohol

while working at Buck’s, fall within the provision’s scope. Buck’s also asserts the arbitrator, and

not the trial court, should resolve Lantrip’s challenges to arbitration.

       Lantrip neither disputes the validity of the arbitration provision nor asserts any affirmative

defenses in this appeal. She contends her claims are independent of the Lease and outside the

narrow scope of the arbitration provision because she alleges Buck’s sold her alcoholic beverages,

making her a patron. Alternatively, Lantrip urges this Court to remand the case to the trial court

for limited discovery on whether her claims fall within the scope of the arbitration provision.

       Initially, we disagree with Buck’s premise that the arbitrator, and not the trial court, should

resolve the arbitrability of Lantrip’s claims. Although parties may agree to delegate to an arbitrator

certain gateway matters a trial court normally determines, they must do so with clear and

unmistakable evidence. See Roe v. Ladymon, 318 S.W.3d 502, 513-14 (Tex. App.—Dallas 2010,

no pet.). The Lease’s arbitration provision grants the arbitrator “authority to resolve any disputes

over the validity and/or enforceability” of any part of the Lease, including the arbitration provision.

An arbitration agreement’s scope, however, is a separate issue from its validity and enforceability.

                                                 –4–
See Firstlight Fed. Credit Union v. Loya, 478 S.W.3d 157, 165 (Tex. App.—El Paso 2105, no

pet.). Thus, we conclude the provision’s language does not clearly and unmistakably delegate the

matter of the provision’s scope to the arbitrator. See id.

       The Lease’s arbitration provision unambiguously requires binding arbitration for any

claims arising out of Lantrip’s performing and/or working at Buck’s at any time, whether those

claims are contractual, in tort, or based upon common law or statute. The factual allegations giving

rise to Lantrip’s claims are that Buck’s (1) sold her alcoholic beverages after it was apparent she

was obviously intoxicated, and (2) required her to consume alcoholic beverages, a breach of

Buck’s duty to use ordinary care in providing a reasonably safe workplace. Although Lantrip

urges that she was a patron because Buck’s sold her alcoholic beverages, the fact that she

purchased drinks is not necessarily inconsistent with her working under the terms of the Lease at

the time. Indeed, Buck’s could not require Lantrip to purchase drinks if she was merely a patron.

       Lantrip nevertheless asserts the scope of the Lease’s arbitration agreement is narrow and

only a more broad provision with an expansive reach could apply to her personal injury claims,

which she alleges are independent of her duties under the Lease. The presumption favoring

agreements to arbitrate under the FAA particularly applies to broad provisions that cover claims

not only “arising out of,” but also “relating to” or “connected with” the contract at issue. See BDO

Seidman, LLP v. J.A. Green Dev. Corp., 327 S.W.3d 852, 857 (Tex. App.—Dallas 2010, no pet.).

In the case of a broad arbitration provision, “[i]n the absence of any express provision excluding a

particular grievance from arbitration, . . . only the most forceful evidence of a purpose to exclude

the claim from arbitration can prevail.” Id. (quoting AT&T Tech., Inc. v. Commc’n Workers of

Am., 475 U.S. 643, 650 (1986)). We agree with Lantrip that the Lease’s arbitration provision is

more narrowly limited to those claims arising out of the Lease or Lantrip’s performing and/or

working at Buck’s, but the narrow scope of the provision is not dispositive in this case. Focusing

                                                –5–
not on her causes of action but the petition’s factual allegations, including an allegation that Buck’s

required her to drink alcoholic beverages, and resolving any doubts in favor of arbitration, we

conclude her claims fall squarely within the scope of the Lease’s arbitration provision. Doing so,

we decline Lantrip’s request to remand this case to the trial court for discovery on her status as an

employee, lessee, or invitee when she was served the alcoholic beverages. Because the Lease’s

arbitration provision is a valid arbitration agreement and Lantrip’s claims fell within the scope of

that provision, the trial court abused its discretion in denying Buck’s motion to compel arbitration.

See Pilot Travel Ctrs., LLC, 416 S.W.3d at 177. Accordingly, we sustain Buck’s sole issue.

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

to the trial court for entry of an order compelling the parties’ dispute to arbitration and granting an

appropriate stay.



                                                       /Ada Brown/
                                                       ADA BROWN
                                                       JUSTICE


170647F.P05




                                                 –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 DALLAS FOOD & BEVERAGE, LLC                         On Appeal from the 191st Judicial District
 D/B/A BUCKS CABARET, Appellant                      Court, Dallas County, Texas
                                                     Trial Court Cause No. DC-17-02080.
 No. 05-17-00647-CV          V.                      Opinion delivered by Justice Brown;
                                                     Justices Lang and Whitehill participating.
 JOY LANTRIP, Appellee

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for entry of an order compelling
arbitration and granting an appropriate stay.

    It is ORDERED that appellant DALLAS FOOD & BEVERAGE, LLC D/B/A BUCKS
CABARET recover its costs of this appeal from appellee JOY LANTRIP.


Judgment entered this 23rd day of February, 2018.




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