Reverse and Remand; Opinion Filed July 7, 2016.




                                               In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-15-00944-CV

                   CORINTH INVESTOR HOLDINGS, LLC, Appellant
                                     V.
                            MARK BENNETT, Appellee

                      On Appeal from the 193rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-14-12135

                            MEMORANDUM OPINION
                          Before Justices Bridges, Francis, and Myers
                                   Opinion by Justice Myers
       This is an interlocutory appeal of the trial court’s order denying appellant Corinth

Investor Holdings, LLC’s motion to compel arbitration and granting appellee Mark Bennett’s

motion to declare the case non-arbitratable.    Corinth argues that (1) it met its initial burden to

show the arbitration agreement was valid and that Bennett’s claims fell within its scope; (2)

Bennett was not entitled to an evidentiary hearing on his defenses; and (3) Bennett failed to

prove his defenses of waiver, revocation, and modification. We reverse and remand.

                          BACKGROUND AND PROCEDURAL HISTORY

       Corinth, a workers’ compensation non-subscriber, operates a medical facility under

Atrium Medical Center. In 2012, Corinth hired Bennett, a registered nurse, to work at Atrium.

During Bennett’s employment, Corinth maintained an “Employee Injury Benefit Plan” (the

benefit plan) in lieu of providing workers’ compensation insurance, and Corinth provided
Bennett with a document called the “Employee Injury Benefit Plan Summary” (the summary).

Both the benefit plan and the summary contained arbitration provisions, and those of the former

were incorporated into the latter. Bennett signed the summary and checked a box on the

signature page stating, “I agree to the terms of this Agreement.”

       Under the benefit plan, the parties agreed to submit disputes arising from employment-

related injuries to binding arbitration under the FAA. The relevant provision reads as follows:

       Arbitration. It is agreed that, except as provided in Article VII hereof, any and all
       disputes, claims (whether tort, contract, statutory or otherwise) and/or
       controversies which relate, in any manner, to this Plan or to the occupational
       injury, death or disease of a Plan Participant shall be submitted to final and
       binding arbitration under the Federal Arbitration Act. The disputes, claims and
       controversies subject to arbitration include, but are not limited to, those which
       relate in any way to the following:

       A. the formation, application, validity, enforceability or interpretation of the Plan;

       B. that the Company did not provide a safe workplace or that the Company’s
       workplace is or was unsafe; and

       C. personal injuries or death sustained by a Participant in the course and scope of
       employment.

The summary stated that Bennett agreed that his receipt of plan benefits, such as payment of

medical expenses, constituted ratification of the agreement. It also provided that revocation or

modification of the agreement had to be in writing, and that Bennett could not revoke his

acceptance of the agreement if the plan had paid (or became obligated to pay) benefits to or for

him:

       Revocation Of Acceptance. If, after accepting this Agreement by signing below, I
       decide to revoke my acceptance of this Agreement, I may do so only by notifying
       the Company in writing by certified mail, return receipt requested, of my
       revocation. I understand and agree that I may not revoke my acceptance of this
       Agreement if the Plan has paid (or become obligated to pay) benefits to or for me.
       I understand and agree that I may only revoke my acceptance of this Agreement:
       (a) within five (5) calendar days after the date of my signature below, or (b)
       within five (5) calendar days after receiving written notice of a material reduction
       in benefits provided by the Plan.

       According to Bennett’s original petition, on March 19, 2013, he was cleaning a “small,
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secured room” during the course and scope of his employment when, as he was doing this, a co-

worker unlocked the door and opened it, striking Bennett in the head and injuring him. Bennett

sought and received medical treatment for his injuries. Over a year following this injury, during

which time Corinth paid thousands of dollars in medical expenses under the benefit plan to treat

Bennett’s injury, he attempted to revoke the agreement. He prepared the following document

(the notice), which states:

       I, Mark Bennett, as a condition of my continuing employment with Atrium
       Medical Center of Corinth, Texas, do hereby change the terms of employment, by
       revoking any prior arbitration agreement that I may have previously signed or
       otherwise agreed to as a condition of my employment.

       As a further condition of my continued employment with Atrium, I hereby declare
       that all disputes of any nature, past, present, or future, shall only be pursued in the
       District or County Courts-at-Law of Dallas County, Texas.

       These changes in my employment status are effective immediately upon tendering
       of this notice to Atrium and the consideration for same is any continued
       employment of me at Atrium, with their knowledge of these changes, regardless
       of how long or how short said continued employment is.

       Bennett emailed a copy of this notice to his immediate supervisor, Maria Guerrero, on

April 14, 2014, and to the human resources director, Melissa Dovel, on April 21, 2014. Bennett

also signed and dated the notice and posted it in various work areas, including “the cork board by

the time clock,” “in all three elevators,” and “the employee lounge.” Corinth responded by

taking the notices down and telling Bennett he could not post them. On May 1, 2014, Bennett

was sent home for possible violations of company policy. He was instructed to return to work on

May 6, 2014. When Bennett appeared at work that day accompanied by his attorney, he was told

to leave the premises. He was told to return to work on May 28, 2014, and report to the human

resources office. Bennett reported to work on May 28, 2014, but the record is unclear regarding

how long after that his employment relationship continued.

       Bennett filed suit against Corinth on October 15, 2014, alleging it failed to provide a


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reasonably safe work place; to properly instruct, supervise, and train supervisory employees; to

supply reasonably safe and suitable equipment, tools, and appliances; and to establish reasonably

safe rules and regulations. Corinth filed its motion to compel arbitration and to abate the

proceedings on June 23, 2015, arguing the plan expressly required claims such as those being

alleged by Bennett to be arbitrated. The motion was set for hearing on July 6, 2015.

       Bennett responded to the motion to compel on July 2, 2015. In his response, Bennett

argued that (1) Corinth conceded that the prior arbitration agreement had been superseded; (2)

Bennett “revoked any prior arbitration agreement;” (3) the parties “entered into a subsequent

agreement;” and (4) Corinth waived its right to arbitrate because it had not objected to venue in

Dallas County.    The only evidence Bennett attached to his response was an unsigned and

unverified copy of the notice.

       During the July 6, 2015 hearing, at which both parties were present, the trial court

observed that the notice purporting to revoke the agreement was unsigned. Corinth argued the

agreement could not be revoked after Bennett had received plan benefits, but the trial court said

that “in theory, you can revoke, change. As long as there’s a meeting of the minds. . . .” Corinth

acknowledged that while, theoretically, one could revoke an agreement if there was a meeting of

the minds, “[t]here’s no meeting of the minds here, there’s just a person saying he revoked it.”

Corinth also argued that the only exhibit offered in support of Bennett’s theory of revocation was

a copy of the notice, which was not signed by either party. Bennett’s counsel argued that “[w]e

have a signed one. We have one that was signed by my client. And if the Court is inclined to

take evidence or simply wants to take my representations, either one is fine.” The court ruled, “I

think we need to have––do it the right way and have evidence and everything.” Midway through

Bennett’s testimony, his counsel offered into evidence a copy of the notice and the email

correspondence Bennett had exchanged with Maria Guerrero. Corinth objected that these

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documents had not been produced in Bennett’s response to the motion to compel or during

discovery. After hearing additional argument concerning the objection, the trial court continued

the hearing to July 20, 2015. The court instructed the parties to submit witness and exhibit lists

for the forthcoming hearing.

          During the time between the two hearings, Corinth filed, on July 17, 2015, a brief arguing

Bennett was not entitled to an evidentiary hearing. Corinth’s brief argued Bennett failed to raise

a genuine fact issue to entitle himself to an evidentiary hearing because he had “merely produced

an unsigned document without any supporting affidavits, purporting to revoke the arbitration

agreement.” Corinth added, “It is also undisputed that [Bennett’s] claims fall within the scope of

the arbitration agreement.” At the hearing on July 20, 2015, Corinth restated its objection to the

evidentiary hearing, as follows:

          I wanted to make one threshold objection to the evidentiary hearing itself, which
          we briefed a little bit in a brief that was submitted last week. I don’t know if the
          Court’s had an opportunity to read that.

          But the essence of that objection is that under Texas law––we cited the Tipps1
          case. The movant has the burden of showing that an arbitration agreement exists
          and that the dispute itself falls within the scope of that arbitration agreement.

          And then the proceeding itself is supposed to be a summary proceeding under that
          standard, and it would change into an evidentiary hearing if the person opposing
          the arbitration proved some kind of material fact through affidavits or other
          admissible evidence. And we don’t believe that plaintiff in this case has met that
          burden to turn this into an evidentiary hearing, so I just wanted to make it clear
          that we do have an objection to the evidentiary hearing itself.

The trial court overruled this objection. The trial court then heard testimony from Bennett

regarding his purported revocation of the agreement. At the close of hearing, the trial court

denied the motion to compel. On July 20, 2015, the court signed an order denying the motion to

compel arbitration and granting Bennett’s motion to declare the case non-arbitratable. This


   1
       Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266 (Tex. 1992).



                                                                  –5–
appeal timely followed.

                                           DISCUSSION

       We begin with Corinth’s second issue, in which it argues Bennett was not entitled to an

evidentiary hearing on his defenses.

       We review orders compelling arbitration under the Federal Arbitration Act (FAA) for an

abuse of discretion. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 271 (Tex. 1992). The FAA is

federal substantive law that governs questions of the validity and enforceability of arbitration

agreements under its coverage. Moses H. Cone Mem’l Hosp. v. Mercury Constr., 460 U.S. 1, 24

(1983); In re Hospitality Emp. Group, LLC, 234 S.W.3d 832, 835 (Tex. App.—Dallas 2007, no

pet.). Federal substantive law governs the applicability of an arbitration agreement under the

FAA, but Texas courts follow Texas procedure to determine whether disputed claims fall within

the scope of that agreement. Tipps, 842 S.W.2d at 268; In re Hospitality Emp. Group, 234

S.W.3d at 835; Prudential Sec. Inc. v. Banales, 860 S.W.2d 594, 597 (Tex. App.––Corpus

Christi 1993, orig. proceeding). In order to successfully challenge the submission of a claim to

arbitration, the opposing party must follow a two-step procedure:           (1) He must initially

controvert the movant’s claims regarding arbitration by presenting affidavits or other such

evidence as would generally be admissible in a summary proceeding; (2) if the party opposing

arbitration has presented such controverting evidence, the trial judge must then hold an

evidentiary hearing to determine the controverted issues regarding arbitration. In re Hospitality

Emp. Group, 234 S.W.3d at 835; Prudential Sec. Inc., 860 S.W.2d at 597. The opposing party’s

failure to follow the first step of presenting proper controverting evidence denies him the right to

proceed to the second step of an evidentiary hearing. Prudential Sec. Inc., 860 S.W.2d at 597;

Hwa Ha Enterprises, Inc. v. Yangzi River, Ltd., No. 14–01–01263–CV, 2002 WL 1316219, at *2

(Tex. App.––Houston [14th Dist.] 2002, no pet.) (mem. op.).

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       In the instant case, it was uncontested that there was a valid, enforceable arbitration

agreement. Bennett, as noted previously, raised several defensive theories in an effort to escape

arbitration. He failed, however, to present any affidavits or other such admissible evidence to

support his contentions. In re Hospitality Emp. Group, 234 S.W.3d at 835; Prudential Sec. Inc.,

860 S.W.2d at 597. Therefore, since Bennett never properly controverted Corinth’s assertion of

a valid arbitration agreement, he was not entitled to an evidentiary hearing and could not prevail

on his defenses. See Prudential Sec. Inc., 860 S.W.2d at 597.

       We sustain Corinth’s second issue. The trial court’s order denying Corinth’s motion to

compel arbitration is reversed and this case is remanded with directions that the court grant the

motion to compel arbitration.     Because of this disposition, we need not address Corinth’s

remaining issues.



150944F.P05

                                                            /Lana Myers/
                                                            LANA MYERS
                                                            JUSTICE




                                               –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

CORINTH INVESTOR HOLDINGS, LLC,                      On Appeal from the 193rd Judicial District
Appellant                                            Court, Dallas County, Texas
                                                     Trial Court Cause No. DC-14-12135.
No. 05-15-00944-CV         V.                        Opinion delivered by Justice Myers. Justices
                                                     Bridges and Francis participating.
MARK BENNETT, Appellee

       In accordance with this Court’s opinion of this date, the trial court’s order denying
appellant CORINTH INVESTOR HOLDINGS, LLC’s motion to compel arbitration is
REVERSED and this cause is REMANDED to the trial court for further proceedings. It is
ORDERED that appellant CORINTH INVESTOR HOLDINGS, LLC recover its costs of this
appeal from appellee MARK BENNETT.

Judgment entered this 7th day of July, 2016.




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