REVERSE and REMAND; and Opinion Filed November 5, 2013.




                                                          S    In The
                                          Court of Appeals
                                   Fifth District of Texas at Dallas
                                                      No. 05-13-00002-CV

                       PILOT TRAVEL CENTERS, LLC, Appellant
                                       V.
              JOAN MCCRAY, JAMES MCCRAY, AND SHAMEKIA GULLATTE,
                  AS NEXT FRIEND OF BRANDON GULLATTE, Appellees

                                On Appeal from the 298th Judicial District Court
                                             Dallas County, Texas
                                    Trial Court Cause No. DC-11-09096-M

                                                     OPINION
                                    Before Justices Moseley, Fillmore, and Myers
                                             Opinion by Justice Fillmore

          In this interlocutory appeal, Pilot Travel Centers, LLC (Pilot Travel) asserts the trial court

erred by denying its motion to compel arbitration and for a stay of the trial court proceedings

against it. We reverse the trial court’s order denying Pilot Travel’s motion to compel arbitration

and for stay of the trial court proceedings.

                                                            Background

          On January 18, 2011, James Antonio McCray (Tony) 1 began employment with Pilot

Travel as a maintenance worker. Pilot Travel was a non-subscriber to the Texas Workers’

Compensation insurance system; it provided an Occupational Injury Benefit Plan (Benefit Plan)

     1
       The record indicates James Antonio McCray signed his name on Pilot Travel employment documents as “James McCray.” In this
opinion, we refer to James Antonio McCray as “Tony” in order to avoid confusion with our references to Tony’s father, appellee James McCray.
for its Texas employees. Amendment 1 to the Benefit Plan is a Mandatory Arbitration Plan for

Resolution of Work Related Injury or Illness Claims of Texas Employees (arbitration

agreement). By its terms, the arbitration agreement indicates it is the exclusive and mandatory

means for an employee and Pilot Travel to resolve their disputes arising from a work-related

injury or illness, and neither an employee nor Pilot Travel “may bring a lawsuit in any state or

federal court against the other regarding a work related injury or illness or the severity of alleged

damages arising from a work related injury or illness.” More specifically, paragraph 1.05 of the

arbitration agreement provides:

       All employees, by applying for, accepting or by continuing employment after the
       implementation of this Plan, shall be required to submit any legally recognized
       claim for a work related injury or illness to arbitration, rather than to litigation,
       according to this Plan and the rules established for its enforcement. The
       Company shall also be required to proceed to arbitration on all work related injury
       or illness matters brought for arbitration by an employee. The duty imposed on
       both the Company and Employee to arbitrate all legally recognized claims arising
       from a work related injury or illness shall continue beyond and not be affected by,
       the termination of an employee’s employment.

       A document captioned “Employer Notice to Current Texas Employees” (Employer

Notice), dated January 18, 2011, contains Tony’s signature, initialing of paragraphs, and social

security number, as well as the witness signature of Pilot Travel’s representative, Brandy Allen.

The Employer Notice contains an “Acknowledgment Receipt Regarding Mandatory Arbitration

Plan for Texas Employees” which provides:

       I, James McCray hereby certify by my initials and signature below that I have
       received a copy of the Mandatory Arbitration Plan. I also understand that ALL
       issues related to the work related injury or illness or benefits pertaining thereto
       MUST be settled through binding arbitration, not litigation, per Pilot Travel
       Centers’ Mandatory Arbitration Plan. Neither party shall have the right to file a
       suit in any state or federal court. Any such arbitration will be governed by the
       Federal Arbitration Act and administered by the American Mediation Association.

(Emphasis in original.)




                                                –2–
       On January 26, 2011, Tony was working within the course and scope of his employment

with Pilot Travel at a truck stop in Dallas, Texas, when he was struck by a tractor trailer rig

owned by Smile Transportation and operated by Ljubo Dilber. Tony died several weeks later as

a result of the injuries he sustained. At the time of his death, Tony was survived by his parents,

appellees Joan and James McCray, and his son, appellee Brandon Gullatte, as represented by his

next friend, Shamekia Gullatte.

       The record contains Pilot Travel’s July 20, 2011 demand for arbitration before the

American Mediation Association, which was received by the American Mediation Association

on July 21, 2011. Pilot Travel referenced the “respondents in this arbitration” as “Joan and

James McCray, Individually and as Next Friends of James Antonio McCray, Deceased; The

Estate of James Antonio McCray; and Shemekia Gullatte, as next Friend of Brandon Gullatte, a

Minor.” Pilot Travel requested the arbitration be conducted in Dallas, Texas, where the accident

occurred and where Tony was employed.

       On July 22, 2011, appellees Joan and James McCray, and Shamekia Gullatte, as next

friend of Brandon Gullatte, filed their original petition in a district court of Dallas County, Texas,

against Pilot Travel and others in the lawsuit underlying this appeal. Appellees allege the

negligence of Pilot Travel and the other named defendants proximately caused Tony’s death and

appellees’ damages resulting from his death. On August 29, 2011, Pilot Travel filed its answer

to appellees’ lawsuit. Included in Pilot Travel’s answer is the affirmative defense that the claims

asserted in the lawsuit were the subject of a mandatory arbitration agreement signed by Tony.

On September 6, 2012, Pilot Travel filed its motion to compel arbitration of appellees’ claims

and for a stay of appellees’ lawsuit against it.




                                                   –3–
           By order with a signature date of November 12, 2012, the trial court denied Pilot Travel’s

motion to compel arbitration (November 12, 2012 Order). The November 12, 2012 Order

indicates that Pilot Travel’s motion to compel arbitration was considered on November 16, 2012.

By order with a signature date of December 12, 2012, the trial court again denied Pilot Travel’s

motion to compel arbitration (December 12, 2012 Order). Other than a mark through the

November 12, 2012 date and a handwritten signature date of December 12, 2012, the December

12, 2012 Order is identical to the November 12, 2012 Order. On December 28, 2012, Pilot

Travel filed its notice of interlocutory appeal of the denial of its motion to compel arbitration.

           On January 16, 2013, the trial judge signed an order granting appellees’ “Motion for

Judgment Nunc Pro Tunc” (January 16, 2013 Order). 2 In the January 16, 2013 Order, the trial

court found that the December 12, 2012 Order contained a clerical error; according to the trial

court, the signature date of December 12, 2012 was incorrect and should have been November

16, 2012. In the January 16, 2013 Order, the trial court ordered the December 12, 2012 Order

corrected to reflect the finding that the date of the trial judge’s signature should be November 16,

2012.

           On February 6, 2013, Pilot Travel filed its verified objection to the January 16, 2013

Order and motion to vacate that order. 3 In its motion to vacate the January 16, 2013 Order, Pilot

Travel stated that on December 14, 2012, it received the trial court’s December 12, 2012 Order

denying Pilot Travel’s motion to compel arbitration. Pilot Travel stated the December 12, 2012

Order was the only signed order it received regarding its motion to compel arbitration. Citing

rule of civil procedure 306a and rule of appellate procedure 26.1(b), Pilot Travel asserted its

     2
       The January 16, 2013 Order states the trial court considered appellees’ “Motion for Judgment Nunc Pro Tunc, and the response thereto.”
However, the record contains no motion for judgment nunc pro tunc, nor any response by Pilot Travel to such a motion. See TEX. R. CIV. P. 316
(permits trial court to correct mistakes and incorrect recitals in judgments but only after reasonable notice of any application for correction is
given to opposing party).
     3
      In its objection to the January 16, 2013 order and motion to vacate that order, Pilot Travel stated it was never served with a motion for
judgment nunc pro tunc.



                                                                      –4–
timetable for filing an interlocutory appeal of the denial of its motion to compel arbitration began

to run on December 12, 2012.

       On May 1, 2013, the trial court signed an “Order on [Pilot Travel’s] Motion for Court to

Vacate Order Granting [Appellees’] Judgment Nunc Pro Tunc and Order Denying Motion to

Compel Arbitration” (May 1, 2013 Order). In the May 1, 2013 Order, the trial court vacated its

January 16, 2013 Order, and again denied Pilot Travel’s motion to compel arbitration.

       By letter dated February 19, 2013, this Court communicated to the parties to this

interlocutory appeal that, after review of the record, it appeared Pilot Travel’s notice of appeal of

the trial court’s denial of its motion to compel arbitration was untimely under rule of appellate

procedure 26.1(b) and requested that the parties file a jurisdictional brief explaining how this

Court has jurisdiction over this appeal. See TEX. R. APP. P. 26.1(b).

                                           Jurisdiction

       Section 51.016 of the civil practice and remedies code provides that in a matter subject to

the Federal Arbitration Act (FAA), a party may appeal from an interlocutory order of a district

court “under the same circumstances that an appeal from a federal district court’s order . . .

would be permitted by 9 U.S.C. Section 16.” TEX. CIV. PRAC. & REM. CODE ANN. § 51.016

(West Supp. 2012); see CMH Homes v. Perez, 340 S.W.3d 444, 448–49 (Tex. 2011) (explaining

that section 51.016 of the civil practice and remedies code provides for interlocutory appeals in

FAA cases so long as “it would be permitted under the same circumstances in federal court under

[9 U.S.C.] section 16”). Section 16 of the FAA provides an appeal may be taken from an order

“denying an application under section 206 of this title to compel arbitration.” 9 U.S.C.A.

§ 16(a)(1)(C) (West 2009); Austin Commercial Contractors, L.P. v. Carter & Burgess, Inc., 347

S.W.3d 897, 900 (Tex. App.—Dallas 2011, pet. denied); Texas La Fiesta Auto Sales, LLC v.

Belk, 349 S.W.3d 872, 877 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

                                                –5–
          An appeal from an interlocutory order denying a motion to compel arbitration is an

accelerated appeal. See TEX. R. APP. P. 28.1 (“Appeals from interlocutory orders (when allowed

by statute) . . . are accelerated appeals.”). In an accelerated appeal, absent a rule of appellate

procedure 26.3 motion, the deadline for filing a notice of appeal is strictly set at twenty days

after the appealable interlocutory order is signed. TEX. R. APP. P. 26.1(b); TEX. R. APP. P. 26.3;

see also In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005); Iron Mountain Bison Ranch, Inc. v.

Easley Trailer Mfg., Inc., 964 S.W.2d 762, 763 (Tex. App.—Amarillo 1998, no pet.)

(interlocutory appeal is perfected by filing notice of appeal with trial court within twenty days

after judgment or order is signed).

          The notice of accelerated appeal of the November 12, 2012 Order denying Pilot Travel’s

motion to compel arbitration and for stay had to be filed within twenty days after the date the

order was signed. Because the twentieth day after the November 12, 2012 Order fell on Sunday,

December 2, 2012, Pilot Travel’s deadline for perfecting the appeal from that order fell on the

following day, Monday, December 3, 2012. See TEX. R. APP. P. 4.1(a). 4 Pilot Travel filed its

notice of appeal on December 28, 2012, more than twenty days after the November 12, 2012

Order.

            If applicable, rule of civil procedure 306a may operate to extend the deadline for filing a

notice of appeal of an interlocutory order. See TEX. R. CIV. P. 306a; see also John v. Marshall

Health Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001). If a party affected by an appealable order

or the party’s attorney has not, within twenty days after the order was signed, either received

notice required by rule of civil procedure 306a(3) or acquired actual knowledge of the signing,


     4
       On appeal, the parties do not dispute the trial court conducted a hearing on Pilot Travel’s motion to compel arbitration on November 16,
2012. However, no reporter’s record containing a transcript of the November 16, 2012 hearing has been filed with this Court. Even assuming the
November 12, 2012 date of signature on the order was incorrect and should have been November 16, 2012, the deadline for filing a notice of
accelerated appeal of a November 16, 2012 order denying Pilot Travel’s motion to compel arbitration and for stay would have been December 6,
2012.



                                                                    –6–
then any period that, under the rules of appellate procedure, runs from the signing of the order

will begin on the earlier of the date when the party or the party’s attorney receives notice or

acquires actual knowledge of the signed order; however, no such period may begin to run more

than ninety days after the judgment or order was signed. TEX. R. APP. P. 4.2(a)(1); see also TEX.

R. CIV. P. 306a(4).

       Subsection (5) of rule of civil procedure 306a provides a procedure that enables the trial

court to change the date the appellate timetable begins to run from the actual date of the

interlocutory order to the date on which the party or the party’s attorney received the clerk’s

notice or acquired actual knowledge that the trial court signed the order, whichever occurs first,

as long as that date is not more than ninety days after the trial court signed the interlocutory

order. TEX. R. CIV. P. 306a(5). A party must obtain an order from the trial court that reflects the

date the party or the party’s attorney first either received notice or acquired actual knowledge

that the order was signed. Hone v. Hanafin, 105 S.W.3d 15, 18 (Tex. App.—Dallas 2002), rev’d

on other grounds, 104 S.W.3d 884 (Tex. 2003) (per curiam); see TEX. R. APP. P. 4.2(c); Moore

Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 540 (Tex. App.—Houston [1st

Dist.] 2003, no pet.); Nedd-Johnson v. Wells Fargo Bank, N.A., 338 S.W.3d 612, 613 (Tex.

App.—Dallas 2010, no pet.); Mem’l Hosp. of Galveston Cnty. v. Gillis, 741 S.W.2d 364, 366

(Tex. 1987) (“Rule 306a plainly requires that this proof be made in the trial court, not the court

of appeals.”).

       On September 25, 2013, the trial court signed an order on Pilot Travel’s motion to

reconsider Pilot Travel’s request for factual finding under rule of civil procedure 306a(5). In that

order, the trial court found that the date Pilot Travel or its attorney first received notice or

acquired actual knowledge of a signed order denying its motion to compel arbitration and for

stay was December 11, 2012, more than twenty days after the November 12, 2012 Order denying

                                                –7–
Pilot Travel’s motion to compel arbitration was signed by the trial court. Therefore, pursuant to

rule of civil procedure 306a(4) and rule of appellate procedure 4.2(a)(1), the twenty-day deadline

for filing Pilot Travel’s notice of appeal of the denial of its motion to compel arbitration and for

stay began on December 11, 2012. See TEX. R. CIV. P. 306a(4); TEX. R. APP. P. 4.2(a)(1).

       Pilot Travel’s notice of appeal was filed December 28, 2012, within twenty days from the

date Pilot Travel or its attorney first received notice or acquired actual knowledge of a signed

order denying its motion to compel arbitration and for stay. Thus, Pilot Travel’s notice of appeal

was timely perfected and this Court has jurisdiction over the accelerated appeal.

             Motion to Compel Arbitration and to Stay Trial Court Proceedings

       In a single issue, Pilot Travel asserts that, because a valid arbitration agreement exists

that is applicable to appellees’ pleaded claims, the trial court erred in denying its motion to

compel arbitration and to stay the trial court proceedings.

       The arbitration agreement provides that the FAA applies to and governs any matter

submitted to arbitration. See In re Advance PCS Health, L.P., 172 S.W.3d 603, 605–06 & n.3

(Tex. 2005) (orig. proceeding) (per curiam) (FAA governs arbitration in Texas if parties

expressly contracted for FAA’s application); In re ReadyOne Indus., Inc., 294 S.W.3d 764, 769

(Tex. App.—El Paso 2009, orig. proceeding) (if parties expressly choose for arbitration

agreement to be governed by FAA, agreement should be enforced regardless of parties’ nexus to

interstate commerce). When a party asserts a right to arbitrate under the FAA, the question of

whether the dispute is subject to arbitration is determined under federal law. Prudential Secs.

Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex. 1995). As a matter of federal law, any doubts

concerning the scope of arbitrable issues are resolved in favor of arbitration, whether pertaining

to the construction of the contract or a defense to arbitrability. See Moses H. Cone Mem’l Hosp.

v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983).

                                                –8–
       In general, a party seeking to compel arbitration under the FAA must establish (1) the

existence of a valid, enforceable arbitration agreement and (2) that the claims at issue fall within

that agreement’s scope. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005)

(orig. proceeding); see also J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003)

(although there is strong presumption favoring arbitration, presumption arises only after party

seeking to compel arbitration proves a valid arbitration agreement exists). The party seeking to

avoid arbitration then bears the burden of raising an affirmative defense to enforcement of the

otherwise valid arbitration provision. In re AdvancePCS Health, 172 S.W.3d at 607. A court

has no discretion and must compel arbitration if it is established that there is a valid arbitration

agreement and the claims raised fall within the scope of that agreement. In re Tenet Healthcare,

Ltd., 84 S.W.3d 760, 765 (Tex. App.—Houston [1st Dist.] 2002, orig. proceeding). “An order to

arbitrate should not be denied unless it can be said with positive assurance that the arbitration

cause is not susceptible of an interpretation that covers the asserted dispute.” Hou-Scape, Inc. v.

Lloyd, 945 S.W.2d 202, 205 (Tex. App.—Houston [1st Dist.] 1997, no writ) (citing United

Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 575, 582–83 (1960)). To determine if

a claim falls within the scope of an arbitration agreement, we focus on the facts alleged, not the

causes of action asserted. Hou-Scape, 945 S.W.2d at 205.

       We review de novo whether an enforceable agreement to arbitrate exits. In re Jindal

Saw, Ltd., 264 S.W.3d 755, 761 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding). We

defer to the trial court’s factual determinations if they are supported by evidence, but we review

the trial court’s legal determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640,

643 (Tex. 2009) (orig. proceeding); see also J.M. Davidson, 128 S.W.3d at 227 (whether an

agreement imposes a duty to arbitrate is question of law which is reviewed de novo); Trammell

v. Galaxy Ranch Sch., L.P., 246 S.W.3d 815, 820 (Tex. App.—Dallas 2008, no pet.). “This

                                                –9–
standard is the same as the abuse of discretion standard of review and we will apply that standard

of review to interlocutory appeals under section 51.016.” Sidley Austin Brown & Wood, LLP v.

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

                                       Arbitration Agreement

                  Existence of Arbitration Agreement Between Pilot Travel and Tony

       Pilot Travel argues that it established a valid arbitration agreement existed between it and

Tony. The record contains the “Acknowledgment Receipt Regarding Mandatory Arbitration

Plan for Texas Employees” reflecting Tony’s certification “by [his] initials and signature” on the

date he was hired by Pilot Travel that he received a copy of the arbitration agreement and

understood that all issues “related to the work related injury or illness or benefits pertaining

thereto must be settled through binding arbitration” governed by the FAA and administered by

the American Mediation Association, and that neither he nor Pilot Travel had the right to file suit

in any state or federal court.      Further, that Acknowledgment was signed by a company

representative.

       While appellees do not contest that the arbitration agreement was incorporated into Pilot

Travel’s Benefit Plan, appellees contend Pilot Travel failed to establish the arbitration agreement

was signed by Tony or that he “assented to arbitration.” Pilot Travel is unable to “authenticate”

Tony’s signature on the “Acknowledgement Receipt Regarding Mandatory Arbitration Plan for

Texas Employees” through questioning him. Cf. In re Halliburton Co., 80 S.W.3d 566, 568 n.2

(Tex. 2002) (orig. proceeding) (in response to motion to compel arbitration of employee’s claim

of employment discrimination, employee asserted signature on a document agreeing to binding

arbitration was not his). During her deposition, appellee Joan McCray testified she recognized

Tony’s signature on the arbitration agreement, although she later apparently “disavowed” her




                                               –10–
answer “since she is neither a handwriting expert nor had she paid close attention to [Tony’s]

signature in more than ten years.”

       Ultimately, appellees’ argument fails because their response in opposition to Pilot

Travel’s motion to compel arbitration is unverified. Appellees have cited no authority, and we

are aware of none, requiring Pilot Travel in this circumstance to “authenticate” Tony’s signature

on the arbitration agreement. See TEX. R. CIV. P. 93(7) (pleading setting up denial of execution

of instrument in writing shall be verified by affidavit; where party denying execution of a

document by person then deceased, affidavit shall be sufficient if it states affiant has reason to

believe and does believe that such instrument was not executed by the decedent or by his

authority); TEX. R. EVID. 601(b) (Dead Man’s Rule); Munden v. Chambless, 315 S.W.2d 355,

358 (Tex. Civ. App.—Dallas 1958, writ ref’d n.r.e.) (test of whether evidence should be

excluded under Dead Man’s Statute is whether, “in case the witness testified falsely, the

deceased, if living could contradict the testimony of his own knowledge”).         Based on the

documentation in the record, we agree with Pilot Travel that it established a valid and

enforceable arbitration agreement existed between it and Tony.

                     Appellees as Non-Signatories to Arbitration Agreement

       Appellees Joan and James McCray are Tony’s surviving parents, and appellee Brandon

Gullatte, represented by his mother as his next friend, is Tony’s surviving son. Appellees’

wrongful death claims against Pilot Travel are made in their capacities as the surviving parents

and child of Tony. See TEX. CIV. PRAC. & REM. CODE ANN. § 71.004 (West 2008) (action to

recover damages as provided by this subchapter is for exclusive benefit of surviving spouse,

children, and parents of the deceased). Appellees argue that as non-signatories to the arbitration

agreement between Pilot Travel and Tony, their claims are not subject to the arbitration




                                              –11–
agreement. They argue their claims are not derivative of any rights that belonged to Tony had he

survived.

           Paragraph 1.02 of the arbitration agreement defines the term “employee” to include the

employee and “any individual, child, dependent, spouse, relative, executor, estate or guardian

which would have the legal standing required to bring a lawsuit for damages arising out of a

claim.” Paragraph 1.04 of the arbitration agreement provides as follows with regard to claims

arising from work-related injuries or illnesses:

           As used in this Plan, “Claim,” “Controversy,” “Dispute” or “Difference” means
           any claim, dispute, disagreement, contention, or grievance arising from a work
           related injury or illness which an Employee has with the Company, or the
           Company has with the Employee, which could normally be made the basis of a
           lawsuit in a State or Federal Court. This pertains only to those claims,
           controversies, disputes or differences for work related injuries and illnesses.

           This Plan DOES NOT provide for resolution of disputes arising from any claim,
           dispute, disagreement, contention or grievance other than those arising from a
           work related injury or illness.

(Emphasis in original.)

           The Texas Supreme Court has held that wrongful death beneficiaries, as derivative

claimants, are bound by the decedent’s agreement to arbitrate. In re Golden Peanut Co., 298

S.W.3d 629, 630 (Tex. 2009) (orig. proceeding); In re Labatt Food Serv., 279 S.W.3d at 646

(decedent’s pre-death arbitration agreement binds his wrongful death beneficiaries because,

under Texas law, the wrongful death cause of action is entirely derivative of the decedent’s

rights); Arredondo v. Dugger, 347 S.W.3d 757, 764 (Tex. App.—Dallas 2011) (citing In re

Golden Peanut Co., 298 S.W.3d at 631), aff’d on other grounds, Dugger v. Arredondo, No. 11-

0549, 2013 WL 4608741 (Tex. Aug. 30, 2013). 5

     5
        Appellees assert that even if this Court concludes the arbitration agreement is enforceable, appellees’ loss of consortium claims are not
subject to the arbitration agreement. As was explained in In re Labatt Food Service, a tort action seeking damages for loss of consortium arises
from nonfatal injuries to a parent or child and are not entirely derivative as are wrongful death claims. 279 S.W.3d at 646. However, “[a]
wrongful death action is different than a loss of consortium claim because the Wrongful Death Act expressly conditions the beneficiaries’ claims
on the decedent’s right to maintain suit for his injuries.” Id.


                                                                    –12–
       Pursuant to the arbitration agreement, if Tony sued Pilot Travel for his own injuries prior

to his death, he would have been compelled to arbitrate his claims. Texas law and the arbitration

agreement therefore provide that all of the claims asserted by appellees against Pilot Travel are

subject to mandatory binding arbitration as agreed to by Tony.           Accordingly, appellees’

argument that they are not bound to arbitrate because they are not signatories to Tony’s

arbitration agreement with Pilot Travel is not persuasive.

                                            Conclusion

       We conclude Pilot Travel established the existence of an arbitration agreement and that

appellees’ claims against it fall within that agreement’s scope.

                           Unconscionability of Arbitration Agreement

       Appellees contend the arbitration agreement is invalid and unenforceable because under

Texas contract law it is procedurally and substantively unconscionable. Because the law favors

arbitration, the party opposing arbitration bears the burden to prove unconscionability. See In re

FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001); see also In re Oakwood Mobile Homes,

Inc., 987 S.W.2d 571, 573 (Tex. 1999) (orig. proceeding) (per curiam) (once party establishes a

claim within scope of an arbitration agreement, trial court must compel arbitration unless other

party presents evidence agreement was procured in unconscionable manner, induced or procured

by fraud or duress, or waived), abrogated in part on other grounds by In re Halliburton, 80

S.W.3d at 572. Unconscionability of an arbitration agreement may exist in one or both of two

forms: (1) procedural unconscionability, which refers to the circumstances surrounding the

adoption of the arbitration provision, and (2) substantive unconscionability, which refers to the

fairness of the arbitration provision itself. In re Halliburton, 80 S.W.3d at 571. Whether a

contract is unconscionable at the time it is formed is a question of law. In re Poly-America, L.P.,

262 S.W.3d 337, 349 (Tex. 2008) (orig. proceeding). A trial court has no discretion to determine

                                               –13–
what the law is or to apply the law incorrectly, and a failure to properly analyze or apply the law

of unconscionability constitutes an abuse of discretion. Id.

                                   Procedural Unconscionability

          In response to Pilot Travel’s motion to compel arbitration, appellees argued the

arbitration agreement is procedurally unconscionable because it was difficult for an

unsophisticated man like Tony to understand, and Pilot Travel knew Tony’s level of education,

and was aware of his lack of sophistication, based on information contained in his application for

employment.       Appellees further argue the procedural unconscionability of the arbitration

agreement based on Tony’s lack of input concerning the terms of the agreement and the one-

sided character of the agreement which Tony had to accept or forego employment by Pilot

Travel.

          Appellees’ unverified response to Pilot Travel’s motion to compel arbitration contained

no evidence the arbitration agreement is procedurally unconscionable. Further, there is no

evidence in the record establishing Tony’s lack of education and “sophistication” as argued by

appellees. With regard to appellees’ argument that the arbitration agreement was procedurally

unconscionable because Tony had to accept the arbitration agreement terms to be employed by

Pilot Travel, the Texas Supreme Court has recognized that an employer may make precisely such

a “take it or leave it” offer to its at-will employees. See In re Halliburton, 80 S.W.3d at 572

(rejecting argument that disparity in bargaining power between employer and employee rendered

arbitration agreement procedurally unconscionable) (citing Hathaway v. Gen. Mills, Inc., 711

S.W.2d 227, 228–29 (Tex. 1986)). Mere inequality of bargaining power is not a sufficient

reason to hold an arbitration agreement unenforceable in the employment context. Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 33 (1991). On this record, nothing about the




                                               –14–
specific circumstances surrounding the adoption of the arbitration agreement shows it to be

procedurally unconscionable.

                                 Substantive Unconscionability

       With regard to their argument the arbitration agreement is substantively unconscionable,

appellees contended in their response to Pilot Travel’s motion to compel arbitration that the costs

and fees to arbitrate their wrongful death claims effectively preclude them from vindicating their

rights because they are indigent. Further, appellees stated they live in Alabama and the travel

expenses to Texas are more than they can bear; yet appellees also indicated that “court costs” to

litigate before a jury have been “very costly but manageable.” Finally, appellees argued the

limitations on discovery contained in the arbitration agreement are substantively unconscionable.

       Addressing first appellees’ argument that arbitration conducted in Texas will be

prohibitively expensive for them, we note appellees filed their wrongful death lawsuit in Texas,

and there is no evidence in the record that arbitration in Texas will entail greater travel expense

than litigation of the wrongful death case in a Texas state court. Moreover, the arbitration

agreement indicates that the party seeking arbitration (Pilot Travel) shall pay the American

Mediation Association filing fee. The arbitration agreement further provides that the costs and

fees charged by the arbitrator shall be borne equally by the parties; however, the arbitrator shall

have the discretion, upon request of a party and for good cause, “to reapportion the arbitration

fees (except attorney fees) and costs in a manner which the arbitrator deems equitable.”

According to the terms of the arbitration agreement, “in no event would an employee be assessed

more than one-half of the arbitration fees (except attorney fees) and costs.” An agreement that

provides for fee-splitting is not, by itself, unconscionable. In re Weeks Marine, Inc., 242 S.W.3d

849, 860 (Tex. App.—Houston [14th Dist.] 2007, orig. proceeding). There is no evidence in the

record that appellees do not have the financial ability to pay a portion of the arbitrator’s fees.

                                              –15–
Appellees admit in their brief that appellee James McCray makes a living wage and that

“Appellee Shamekia Gullatte is a registered nurse.” Appellees cannot point to evidence of

severe monetary constraints that would effectively preclude participation in arbitration. Further,

there is no evidence in the record supporting appellees’ assertion an arbitration will be more

costly than litigating appellees’ wrongful death claims in state court.

       By the express terms of the arbitration agreement, remedies available to appellees in

arbitration shall be the same remedies available to them in a state court proceeding. With regard

to the amount of discovery permitted, paragraph 1.17 of the arbitration agreement provides:

       Unless so ordered by the arbitrator, and only upon a showing of good cause, no
       more than three (3) depositions, excluding depositions of expert witnesses, may
       be taken by any party. No single deposition may exceed four (4) hours.
       Interrogatories may be utilized by any party. Each party is allowed two (2) sets of
       Interrogatories requiring no more than twenty (20) separate responses per set
       (subset requests such as IA, IB or questions requesting multiple answers shall
       each count as one response). The arbitrator shall have sole authority to determine
       which discovery procedures are necessary and appropriate in the case to reduce
       the time, cost and expense of the discovery process, while still affording each
       party a fair opportunity to prepare its case. Requests for Production may be
       utilized by any party upon approval by the arbitrator. Requests for Admission
       may be utilized by any party upon approval by the arbitrator. Unless a greater
       time is allowed by the requesting party, Interrogatories, Requests for Production
       and Requests for Admission shall be answered or objected to within thirty (30)
       days from the date of service.

Under the arbitration agreement, the parties are permitted the same amount of discovery. See In

re Poly-America, 262 S.W.3d at 357–58 (discovery limitations in arbitration agreement applied

equally to both sides and were not per se substantively unconscionable; limitations that operate

to prevent effective presentation of claim are unenforceable, but that determination is best left to

arbitrator as case unfolds). Appellees contend they need to conduct discovery beyond that

contemplated by the arbitration agreement. However, appellees acknowledge written discovery

has been exchanged and depositions have previously been taken in the lawsuit. In addition, the

arbitration agreement provides that upon a showing of good cause, a party may obtain an order

                                               –16–
from the arbitrator for taking additional depositions, and may obtain approval from the arbitrator

to utilize requests for production and for admissions. At this point in the proceeding, we cannot

conclude that the evidence presented to the trial court compelled a finding that the discovery

limitations were per se unconscionable. See id. at 358.

       Substantive unconscionability refers to fairness of an arbitration provision. See In re

Halliburton, 80 S.W.3d at 571. Here, the terms of the arbitration agreement do not favor either

party. Appellees have not established that the cost of arbitration or the discovery limitations

contained in the arbitration agreement will prevent them from effectively presenting their

wrongful death claims. On this record, appellees failed to establish the terms of the arbitration

agreement are substantively unconscionable.

                                             Conclusion

       Appellees failed to establish procedural or substantive unconscionability as a defense to

Pilot Travel’s motion to compel arbitration.

                                  Waiver of Arbitration Agreement

       A party may waive contractual arbitration rights by substantially invoking the judicial

process to the detriment of the other party. Perry Homes v. Cull, 258 S.W.3d 580, 589–90 (Tex.

2008). As a defense to Pilot Travel’s motion to compel arbitration, appellees contend Pilot

Travel waived arbitration and that they were prejudiced by Pilot Travel invoking the judicial

process.

                              Standard of Review and Applicable Law

           Waiver of contractual arbitration rights is a question of law that this Court reviews de

novo. Id. at 598; see also Small v. Specialty Contractors, Inc., 310 S.W.3d 639, 644 (Tex.

App.—Dallas 2010, no pet.).          Because public policy favors resolving disputes through

arbitration, the law imposes a strong presumption against the waiver of contractual arbitration

                                                –17–
rights. See In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex. 1998) (orig. proceeding); see

also In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 763 (Tex 2006) (orig. proceeding) (per

curiam) (there is a strong presumption against waiver under the FAA). When presented with

questions of waiver, we are required to resolve any doubts in favor of arbitration. In re Oakwood

Mobile Homes, 987 S.W.2d at 574. The standard for determining waiver is the same under

federal and state law. See Holmes, Woods & Diggs v. Gentry, 333 S.W.3d 650, 654 (Tex.

App.—Dallas 2009, no pet.). Waiver may be implied from a party’s conduct, so long as that

conduct is unequivocal.     Perry Homes, 258 S.W.3d at 593.           In “close cases, the ‘strong

presumption against waiver’ should govern.” Id. (quoting In re D. Wilson Constr. Co., 196

S.W.3d 774, 783 (Tex. 2006) (orig. proceeding)).

       As the parties claiming waiver, appellees had the heavy burden of establishing Pilot

Travel substantially invoked the judicial process. See Bruce Terminix, 988 S.W.2d at 704;

Adams v. StaxxRing, Inc., 344 S.W.3d 641, 648 (Tex. App.—Dallas 2011, pet. denied). In

determining whether appellees met their burden, we must examine the case-specific facts and

look to the totality of the circumstances. See Perry Homes, 258 S.W.3d at 591 (whether a party

has waived arbitration must be decided on a case-by-case basis, based upon an examination of

the totality of the circumstances). The judicial process is substantially invoked when the party

seeking arbitration has taken specific and deliberate actions, after the filing of the suit, that are

inconsistent with the right to arbitrate or has actively tried, but failed, to achieve a satisfactory

result through litigation before turning to arbitration. In re Vesta Ins. Group, Inc., 192 S.W.3d at

763. Factors considered in determining whether a movant has substantially invoked the judicial

process include when the movant knew of the arbitration clause, how much discovery has been

initiated and who initiated it, the extent to which discovery related to the merits rather than

arbitrability or standing, how much of the discovery would be useful in arbitration, whether the

                                               –18–
movant sought judgment on the merits, and whether the movant sought to compel arbitration on

the “eve of trial.” Perry Homes, 258 S.W.3d at 590–92.

       In addition to their burden of showing Pilot Travel substantially invoked the judicial

process, appellees had the burden to show prejudice. See id. at 595 (“waiver of arbitration

requires a showing of prejudice”). “Prejudice” in the context of waiver of contractual arbitration

rights “refers to the inherent unfairness in terms of delay, expense, or damage to a party’s legal

position that occurs when the party’s opponent forces it to litigate an issue and later seeks to

arbitrate that same issue.” Id. at 597 (quoting Republic Ins. Co. v. PAICO Receivables, LLC, 383

F.3d 341, 346 (5th Cir. 2004)).      “Thus, ‘a party should not be allowed purposefully and

unjustifiably to manipulate the exercise of its arbitral rights simply to gain an unfair tactical

advantage over the opposing party.’” Id. (quoting In re Tyco Inti’l Ltd. Sec. Litig., 422 F.3d 41,

46 n.5 (1st Cir. 2005)).

                            Substantial Invocation of Judicial Process

       On July 20, 2011, Pilot Travel demanded arbitration before the American Mediation

Association. On July 22, 2011, appellees filed their original petition and request for disclosures.

Pilot Travel’s original answer filed on August 29, 2011 included the affirmative defense that

appellees’ claims against Pilot Travel were the subject of a binding arbitration agreement. See In

re H&R Block Fin. Advisors, Inc., 262 S.W.3d 896, 901 (Tex. App.—Houston [14th Dist.] 2008,

orig. proceeding) (burden of demonstrating waiver “falls even more heavily” when the party

seeking arbitration included a demand for arbitration in its original answer) (quoting Keytrade

USA, Inc. v. Ain Temouchent M/V, 404 F.3d 891, 897 (5th Cir. 2005)). Pilot Travel filed its

motion to compel arbitration and for stay of the trial court proceedings against it on September 6,

2012. Appellees filed their response to Pilot Travel’s motion to compel arbitration on October

11, 2012.

                                              –19–
        Appellees assert they have expended considerable time and resources responding to Pilot

Travel’s “actions in litigation.” According to appellees, Pilot Travel gained valuable information

“during discovery,” especially from depositions that “potentially” would not have been available

in arbitration.   Appellees also state their “pretrial strategy would have been substantially

different” had Pilot Travel filed its motion to compel arbitration earlier. Appellees state they

have “endured two years of litigation including being deposed, answering interrogatories,

interstate traveling and so forth.”

        With regard to appellees’ argument that Pilot Travel waived arbitration by its delay in

seeking an order from the trial court compelling arbitration, delay alone generally does not

establish waiver. See In re Vesta Ins. Group, 192 S.W.3d at 763. The record shows a period of

approximately one year between the time Pilot Travel answered the lawsuit and the time it filed

its motion to compel arbitration. Greater delays in moving to compel arbitration have been

insufficient to constitute waiver of arbitration rights. See, e.g., id. (litigating for two years in trial

court insufficient to overcome presumption against waiver). We must consider this delay in the

context of other factors affecting the litigation process. Small, 310 S.W.3d at 639.

        We note there was no evidentiary hearing and no reporter’s record of argument before the

trial court concerning Pilot Travel’s motion to compel arbitration. The trial court made no

findings pertinent to the merits of Pilot Travel’s motion to compel arbitration. Appellees do not

cite to evidence purportedly presented to the trial court, nor can appellees cite to any evidence in

the record, that demonstrates Pilot Travel substantially invoked the judicial process. See Small,

310 S.W.3d at 645–46, 649 (record did not support argument that movants had waived their right

to arbitration by invoking the judicial process to the prejudice of nonmovant; record contained no

reporter’s record of argument before the trial court, no evidentiary hearing regarding the motion

to compel arbitration, and no trial court findings).

                                                  –20–
           The quantum of litigation conduct that will be deemed “substantial” depends very much

on the context. See Perry Homes, 258 S.W.3d at 593; EZ Pawn Corp. v. Mancias, 934 S.W.2d

87, 89–90 (Tex. 1996) (per curiam) (party did not waive arbitration right by answering the suit,

participating in docket control conference, propounding requests for production and

interrogatories, noticing plaintiff’s deposition, and entering into an agreed order to reset the

original trial date); Walker v. J.C. Bradford & Co., 938 F.2d 575, 576–78 (5th Cir. 1991) (party

did not waive arbitration right by propounding interrogatories and requests for production,

attending pretrial conference, and delaying thirteen months before filing motion to compel

arbitration).

           In response to Pilot Travel’s motion to compel arbitration, appellees argued Pilot Travel

invoked the judicial process by consenting to co-defendants’ removal of the state court litigation

to federal court, participating in scheduling conferences in federal and state court, agreeing to

trial dates in state and federal court, and signing scheduling orders in federal and state court. 6 By

appellees’ own admission, Pilot Travel did not “invoke” the judicial process with regard to

removal of the case to federal court, but rather consented to co-defendants’ removal of the case.

We disagree that by purported agreement to trial settings, Pilot Travel “sought judgment on the

merits” as argued by appellees. Further, the record contains no evidence of scheduling orders or

trial dates in the lawsuit during its pendency in either federal or state court. 7

           In their appellate brief, appellees state the discovery in this lawsuit “has been pretty

extensive” between appellees and Pilot Travel’s co-defendants, and the exchange of discovery


     6
        According to appellees, because of a lack of complete diversity jurisdiction, the federal case was remanded to state court. The record
contains no evidence of when the case was removed to federal court or remanded to state court. The docket sheet from the state court litigation
references removal and remand. However, docket sheets are not part of the record. See Energo Int’l Corp. v. Modern Indus. Heating, Inc., 722
S.W.2d 149, 151 & n.2 (Tex. App.—Dallas 1986, no writ) (docket sheet entries are not part of the record which may be considered because they
lack the formality of orders and judgments; rather, docket sheet entry is a memorandum made for the convenience of the trial court and clerk).
     7
       Appellees state in their response to Pilot Travel’s motion to compel arbitration that the case was set for trial on July 23, 2012. However,
appellees do not argue that Pilot Travel invoked the judicial process by seeking a continuance of that trial setting.



                                                                     –21–
between appellees and Pilot Travel’s co-defendants has “greatly benefitted” Pilot Travel because

it received copies of the discovery exchanged. Appellees do not contend Pilot Travel has

initiated discovery; instead, they argue Pilot Travel has not needed to initiate discovery because

of the discovery exchanged between appellees and Pilot Travel’s co-defendants.            Further,

appellees assert Pilot Travel participated in discovery by “significantly” deposing three parties,

co-defendant Dilber and appellees Joan McCray and Shamekia Gullatte. However, appellees do

not contend Pilot Travel invoked the judicial process by noticing any of the parties for

deposition; instead, they argue that by merely participating in the depositions, Pilot Travel

invoked the judicial process.

       Appellees’ arguments regarding discovery concern matters that are not reflected in the

record. No discovery was admitted into evidence or attached to appellees’ response to Pilot

Travel’s motion to compel arbitration.       Because appellees offered none of the discovery

documents as evidence in the trial court and presented no details about any of them, the record

does not show whether the written discovery was limited or extensive, sought information for

affirmative or defensive issues, or whether the discovery addressed the merits of the lawsuit.

Further, appellees do not allege that the discovery already conducted would not be useful in

arbitration. See In re Vesta Ins. Group, 192 S.W.3d at 763 (noting that no prejudice from

allegedly “extensive discovery” was shown where party opposing arbitration failed to present

evidence detailing the discovery conducted and failed to allege discovery already conducted

would not be useful in arbitration); see Small, 310 S.W.3d at 648 (appellee did not claim

discovery already exchanged could not be used in arbitration).

       The supreme court in Perry Homes emphasized facts that would constitute waiver:

“allowing a party to conduct full discovery, file motions going to the merits, and seek arbitration

only on the eve of trial.” Perry Homes, 258 S.W.3d at 590 (quoting In re Vesta Ins. Group, 192

                                              –22–
S.W.3d at 764)). Here, the record does not show Pilot Travel filed a motion on the merits,

engaged in extensive discovery, or sought arbitration on the eve of trial. See Small, 310 S.W.3d

at 645–47.

                                              Prejudice

       Additionally, appellees did not present any evidence that they suffered prejudice.

“Prejudice” in the context of waiver of a contractual right to arbitration means “the inherent

unfairness in terms of delay, expense, or damage to a party’s legal position that occurs when the

party’s opponent forces it to litigate an issue and later seeks to arbitrate that same issue.” Perry

Homes, 258 S.W.3d at 597; see also In re Bruce Terminix Co., 988 S.W.2d at 704 (noting that

even substantial invocation of judicial process does not constitute waiver absent proof of

prejudice). In appellees’ brief they state Pilot Travel’s “delay” and “actions” caused them

“detriment and prejudice in terms of burgeoning and unnecessary legal fees, etc.” We question

whether this argument was made before the trial court. In their response to Pilot Travel’s motion

to compel arbitration, appellees state Pilot Travel delayed in moving to compel arbitration which

resulted in appellees “expending considerable time and resources.” Assuming this argument can

be construed to comport with appellees’ argument on appeal, the record is void of evidence

relating to legal fees and expenses incurred as a result of Pilot Travel’s allegedly invoking the

litigation process to appellees’ detriment.     See id.   Further, although appellees argue their

“pretrial strategy” would have been “substantially different” had Pilot Travel filed its motion to

compel arbitration earlier, appellees have not established how their legal position has been

prejudiced. Appellees have not carried their burden to establish expense or damage to their legal

position as a result of Pilot Travel’s alleged invoking the judicial process to appellees’ detriment.




                                                –23–
                                            Conclusion

       On this record and considering the totality of the circumstances in this case, we conclude

appellees have not met their heavy burden of establishing Pilot Travel waived arbitration by

substantially invoking the judicial process, nor have they demonstrated sufficient prejudice to

overcome the strong presumption against waiver of arbitration.

                                       Section 1 of the FAA

       According to appellees, the arbitration agreement is unenforceable under section 1 of the

FAA. Section 1 is an exemption provision and it provides the FAA does not apply “to contracts

of employment of seamen, railroad employees, or any other class of worker engaged in foreign

or interstate commerce.” 9 U.S.C.A. § 1 (West 2009). Appellees argued to the trial court in their

response to Pilot Travel’s motion to compel arbitration that “nothing in the FAA applies to

employment contracts of workers engaged in interstate commerce.” More specifically, appellees

argued to the trial court that Tony was a maintenance worker for Pilot Travel and a large portion

of Pilot Travel’s business “involves providing fuel, rest facilities, food, etc. for truck drivers of

18-wheeler tractor trailers.” According to appellees, “these drivers and their trucks are engaged

in interstate commerce daily” and, “[b]y extension, workers who maintain the parking lots and

facilities that service these trucks as well as providing other services to these truckers and their

trucking companies are directly engaged in interstate commerce.”

       Appellee’s argument that “nothing in the FAA applies to employment contracts of

workers engaged in interstate commerce” has been previously rejected by the United States

Supreme Court and by this Court. The United States Supreme Court has held that “[s]ection 1

exempts from the FAA only contracts of employment of transportation workers.” Circuit City

Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001). Many years prior to the decision in Adams, this

Court concluded that section 1’s exemption related only to employment contracts of workers

                                               –24–
“actually engaged in the movement of goods in interstate commerce.” White-Weld & Co. Inc. v.

Mosser, 587 S.W.2d 485, 487 (Tex. Civ. App.—Dallas 1979, writ ref’d n.r.e.) (employee who

sold government bonds not engaged in movement of goods in interstate commerce for purposes

of section 1 exclusion) (citing Dickstein v. duPont, 443 F.2d 783, 785 (1st Cir. 1971)).

       While appellees also argue that workers who maintain parking lots and facilities at a

truck stop are “by extension” engaged in interstate commerce, there is no evidence in this record

to support an argument Tony was a transportation worker actually engaged in the movement of

goods in interstate commerce within the meaning of the exemption of section 1 of the FAA. See

Adams, 532 U.S. at 119; Mosser, 587 S.W.2d at 487. Instead, the record indicates Tony was

employed as a truck stop maintenance worker, and as a maintenance worker Tony was no more

engaged in the movement of goods in interstate commerce than a clerk in a truck stop

convenience store or wait staff in a truck stop restaurant. The facts on this record are insufficient

to trigger the exemption in section 1 of the FAA. See Cole v. Burns Int’l Sec. Servs, 105 F.3d

1465, 1472 (D.C. Cir. 1997) (security guard at Union Station in Washington, D.C. not engaged

in transportation of goods in commerce for purposes of section 1 exclusion). Accordingly, we

are not persuaded by appellees’ defense to Pilot Travel’s motion to compel arbitration based on

section 1 of the FAA.

                           Section 171.002 of the Texas Arbitration Act

       The arbitration agreement provides the FAA shall apply to and govern any matter

submitted to arbitration pursuant to Pilot Travel’s Benefit Plan, and that in the event or to the

extent the FAA may be determined to be inapplicable, “and only in such an event,” the Texas

General Arbitration Act (TAA) shall apply. In defense to Pilot Travel’s motion to compel

arbitration, appellees assert that because section 1 of the FAA does not apply to employment

contracts of workers engaged in interstate commerce, section 171.002 of the TAA applies and

                                               –25–
exempts this matter from arbitration. Section 171.002 of the TAA excludes claims for personal

injury from arbitration under the TAA unless each party to the claim, on the advice of counsel,

agrees in writing to arbitrate and the agreement is signed by each party and each party’s attorney.

TEX. CIV. PRAC. & REM. CODE ANN. § 171.002(a)(3), (c) (West 2011); see also In re Nexion

Health at Humble, Inc., 173 S.W.3d 67, 69 (Tex. 2005) (orig. proceeding) (TAA interfered with

enforceability of arbitration agreement governed by FAA by adding requirement of signature of

a party’s counsel to arbitration agreements in personal injury cases, and FAA preempts the

TAA); Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 686–87 (1996) (“Courts may not,

however, invalidate arbitration agreements under state laws applicable only to arbitration

provisions.”). Here, the parties do not dispute that appellees’ wrongful death claims are personal

injury claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 71.002(b) (West 2008) (person is liable

for damages arising from an injury that causes an individual’s death if injury was caused by

person’s or his agent’s or servant’s wrongful act, neglect, carelessness, unskillfulness, or

default). Pilot Travel does not contend Tony was represented by an attorney at the time of

signing the arbitration agreement or that an attorney for Tony signed the arbitration agreement.

However, as discussed above, we conclude section 1 of the FAA does not exempt this matter

from arbitration. Therefore, appellees’ argument that section 171.002 of the TGAA exempts this

matter from arbitration is unpersuasive.

                                           Conclusion

       The trial court abused its discretion by refusing to compel arbitration of appellees’ claims

against Pilot Travel. Under the FAA, a trial court must stay the litigation of issues that are

subject to arbitration. See 9 U.S.C.A. § 3 (West 2009). The trial court’s order denied Pilot

Travel’s motion to compel arbitration and for stay in “all respects.” Therefore, it appears the

trial court, in addition to denying Pilot Travel’s motion to compel arbitration, also denied Pilot

                                              –26–
Travel’s motion to stay further litigation of appellees’ claims against it. Having concluded the

trial court erred in failing to compel arbitration of appellees’ claims asserted against Pilot Travel,

the trial court also erred in failing to stay further litigation of those claims. See Courtland Bldg.

Co., Inc. v. Jalal Family P’ship, Ltd., 403 S.W.3d 265, 276 (Tex. App.—Houston [14th Dist.]

2012, no pet.). Accordingly, we reverse the order of the trial court denying Pilot Travel’s motion

to compel arbitration and for stay of the trial court proceedings and remand the case to the trial

court for further proceedings consistent with this opinion.



                                                     /Robert M. Fillmore/
                                                     ROBERT M. FILLMORE
                                                     JUSTICE

130002F.P05




                                                –27–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

PILOT TRAVEL CENTERS, LLC,                           On Appeal from the 298th Judicial District
Appellant                                            Court, Dallas County, Texas,
                                                     Trial Court Cause No. DC-11-09096-M.
No. 05-13-00002-CV         V.                        Opinion delivered by Justice Fillmore,
                                                     Justices Moseley and Myers participating.
JOAN MCCRAY, JAMES MCCRAY, AND
SHAMEKIA GULLATTE, AS NEXT
FRIEND OF BRANDON GULLATTE,
Appellees

        In accordance with this Court’s opinion of this date, the order of the trial court denying
Pilot Travel Centers, LLC’s motion to compel arbitration and for stay of trial proceedings against
it is REVERSED, and this cause is REMANDED to the trial court for further proceedings
consistent with this opinion.

       It is ORDERED that appellant Pilot Travel Centers, LLC recover its costs of this appeal
from appellees Joan McCray, James McCray, and Shamekia Gullatte, as Next Friend of Brandon
Gullatte.


Judgment entered this 5th day of November, 2013.




                                                   /Robert M. Fillmore/
                                                   ROBERT M. FILLMORE
                                                   JUSTICE




                                              –28–
