Motion for En Banc Reconsideration Granted; Majority and Dissenting Opinions
filed September 4, 2014, Withdrawn; Affirmed and En Banc Majority and En Banc
Dissenting Opinions filed April 23, 2015.




                                          In The

                         Fourteenth Court of Appeals

                                   NO. 14-13-00580-CV

              IN THE ESTATE OF ROSA ELVIA GUERRERO, DECEASED


                        On Appeal from the Probate Court No. 2
                                 Harris County, Texas
                          Trial Court Cause No. 388,367-401

                EN BANC DISSENTING OPINION


      This case is a classic example where a rule of procedure would clarify the
procedures for motions to compel arbitration and prevent unnecessary appeals. It also
showcases the unnecessary expense involved in cases where we do not stick to the rule
that objections should be made in the trial court and that the trial court should rule on the
objections.
      Motions to compel arbitration are governed by section 171.021 of the Texas Civil
Practice and Remedies Code. This section, entitled “Proceeding to Compel Arbitration,”
provides in part:

      (a)       A court shall order the parties to arbitrate on application of a party
                showing:
                (1)    an agreement to arbitrate; and
                (2)    the opposing party’s refusal to arbitrate.
      (b)       If a party opposing an application made under Subsection (a) denies the
                existence of the agreement, the court shall summarily determine that
                issue. . . .
See TEX. CIV. PRAC. & REM. CODE ANN. § 171.021 (West 2011).

      This would appear to be a relatively straightforward proceeding, requiring the party
opposing arbitration to deny the arbitration agreement’s existence. Guerrero did not. Yet
today our court denies relief to Champion for the sole reason that Champion failed to
properly authenticate the arbitration agreement—a matter that Champion can easily solve
on remand by obtaining a business-records affidavit from Penny Perng.1 Guerrero objected
to the authenticity of the documents in the trial court but she did not get a ruling on her
objections.

      Relying on summary-judgment evidentiary procedures, the majority concludes that
Champion failed to properly prove up the arbitration agreements. If our record consisted of
only Champion’s amended motion to compel arbitration, I might agree. But it contains
much more. Guerrero deposed several Champion witnesses—including Perng, the
custodian of Champion’s records. Perng’s deposition was attached to one of Guerrero’s
responses. Perng testified that she brought the original purchase and warranty files to the
deposition; that the files contained all of the records related to the Guerrero sale and any
original documents signed by Guerrero; and that the files were kept contemporaneously in

      1
          In fact, that is what happened after we issued our original panel opinion in this case.

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the ordinary course of business and as an ordinary practice. She also testified that these
files contained an Arbitration Agreement, Buyer’s Order and Invoice, Motor Vehicle
Retail Installment Sales Contract, and Security Agreement, and she explained details
regarding each document. Guerrero’s attorney saw the original documents with Guerrero’s
signature. That is why—in good faith—he could not argue in his pleadings or at the
hearing that she did not sign the agreements; it is why he admitted that she did sign
“various documents”; and it is why he specifically admits that she signed an agreement
without an arbitration clause and with a merger clause.

       Under Texas Rule of Evidence 901, “The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.”2 As Guerrero’s
response showed, Champion’s witnesses did so. Cf. Jordan v. Geigy Pharms., 848 S.W.2d
176, 181 (Tex. App.—Fort Worth 1992, no writ) (holding nonmovant may rely on
movant’s summary-judgment evidence). Because the majority concludes that a fact
question exists as to the authenticity of the agreements—despite this evidence, and even
though Guerrero introduced no controverting affidavit and did not deny the genuineness of
the agreements—I respectfully dissent.


                                            /s/     Tracy Christopher
                                                    Justice

Justice Wise authored the En Banc Majority Opinion, in which Justices Boyce, Jamison,
Donovan, and Brown joined. Chief Justice Frost authored an En Banc Dissenting Opinion.
Justice Christopher authored an En Banc Dissenting Opinion, in which Justices McCally
and Busby joined.


       2
          During the pendency of this appeal, Rule 901 was revised to read as follows: “To satisfy the
requirement of authenticating or identifying an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims it is.” See Tex. Sup. Ct. Misc.
Dkt. No. 15-9048 (Mar. 12, 2015).

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