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                                                    OPINION

                                              No. 04-09-00310-CV

                                      J.B. HUNT TRANSPORT, INC.,
                                                Appellants

                                                          v.

                                            Terri HARTMAN, et al.,
                                                   Appellees

                   From the 79th Judicial District Court, Jim Wells County, Texas
               Trial Court No.08-02-46678, the Honorable Richard C. Terrell presiding

                                              No. 04-09-00369-CV

                                  IN RE J.B. HUNT TRANSPORT, INC.

                                       Original Mandamus Proceeding1

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: January 20, 2010

APPEAL DISMISSED FOR LACK OF JURISDICTION; PETITION FOR WRIT OF
MANDAMUS CONDITIONALLY GRANTED



           1
          … This proceeding arises out of Cause No. 08-02-46678 , styled Terri Hartman, as next friend of Marissa
Hartman, a minor, et al. v. Daimler Trucks North America, L.L.C. d/b/a Freightliner, L.L.C., et al., pending in the 79th
Judicial District Court, Jim W ells County, Texas, the Honorable Richard C. Terrell presiding.
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       In these consolidated proceedings, J.B. Hunt Transport, Inc. (AJ.B. Hunt@) complains of the

trial court’s May 21, 2009 order denying its motion to compel arbitration. We dismiss J.B. Hunt’s

interlocutory appeal for lack of jurisdiction and conditionally grant the petition for writ of

mandamus.

                                           BACKGROUND

       The underlying dispute arose out of a wrongful death claim filed after Mr. Gary Pilat was

killed in a car accident while driving a truck owned by J.B. Hunt, his employer. J.B. Hunt provided

its employees a benefits plan, entitled “J.B. Hunt Texas Injury Benefit Plan Summary Plan

Description” (hereinafter “Benefit Plan”). The Benefit Plan provides that in the event an employee

dies as a result of an on the job injury, J.B. Hunt will pay the employee’s beneficiary $100,000 in

death benefits and will reimburse funeral expenses up to $6,000 to any one who incurs them. On

June 2, 2004, Mr. Pilat signed the Benefit Plan. Included in the Benefit Plan is an arbitration

agreement which provides as follows:

               All claims or disputes described below that cannot otherwise be
               resolved between the Company and you are subject to final and
               binding arbitration. This binding arbitration is the only method for
               resolving any such claim or dispute. . . .

               This arbitration requirement applies to: . . .

               [A]ny legal or equitable claim by or with respect to you for any form
               of physical or psychological damage, harm or death which relates to
               an accident, occupational disease, or cumulative trauma. . . .

               These provisions also apply to any claims that may be brought by
               your spouse, children, beneficiaries, representatives, executors,
               administrators, guardians, heirs or assigns.




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         On June 1, 2007, Terri Hartman, individually and as next friend of Marissa Hartman, a minor

child, filed suit in Bexar County against J.B. Hunt. The parties do not dispute that the only purpose

of this first suit was to seek approval from the trial court for the payment of death benefits and

funeral expenses under the Benefit Plan. The parties entered an agreed judgment, which ordered the

death benefits to be paid to Mr. Pilat’s minor daughter, Marissa Hartman. Then, on February 7,

2008, Terri Hartman, as next friend of Marissa Hartman, a minor, and Marlene Hartman, as

Executrix of the Estate of Gary Pilat, deceased, filed a second suit in Jim Wells County, which

named as defendants Daimler Trucks North America, L.L.C., J.B. Hunt, and Claudio Barrera, III.

Plaintiffs subsequently filed an amended petition, indicating that only Marissa Hartman (hereinafter

“Hartman”) is seeking to recover damages for the wrongful death of her father and the Estate of Gary

Pilat is not bringing any claims against J.B. Hunt in the lawsuit because of the signed arbitration

agreement.

         J.B. Hunt filed its original answer on May 12, 2008, indicating that it is “subject to, and

without waiving, its right to compel arbitration of all or any part of this case.” On June 3, 2008, J.B.

Hunt filed a plea to the jurisdiction and motion to stay proceedings or discovery, which sought to

have the case dismissed on the following grounds: (1) standing; (2) election of remedies; (3)

estoppel; (4) mootness; (5) res judicata; and (6) an agreed settlement.2 On August 28, 2008, the trial



         2
           … At the outset, the plea to the jurisdiction provided that it is “Subject to, and without waiving, its right to
arbitrate.” In addition, the plea contained a section entitled “J.B. Hunt Preserves its Arbitration Rights,” which
specifically provides: (1) “Far from substantially invoking the judicial process, J.B. Hunt seeks to avoid litigation
altogether”; (2) “By pursuing dismissal, J.B. Hunt has not jeopardized its right to compel arbitration under the Federal
Arbitration Act”; (3) “Nor can anyone prove an ‘unequivocal’ waiver, especially because J.B. Hunt has expressly
reserved its right to arbitrate throughout.” Additionally, J.B. Hunt’s reply to plaintiffs’ response to J.B. Hunt’s plea to
the jurisdiction specifically asserts “Marissa must arbitrate her claim, a defense disputed by Plaintiffs,” and gives
supporting arguments for such an assertion. Hartman contends that at the hearing on the plea to the jurisdiction, plaintiffs
brought up the arbitration issue, but J.B. Hunt advised the court that the issue “may be reserved for another day.”

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court denied J.B. Hunt’s plea to the jurisdiction. Since the inception of the suit, various discovery

has been conducted that we will address later in this opinion.

       On December 5, 2008, all parties agreed to continue the April 2009 trial setting. Then on

February 13, 2009, In re Labatt Food Service, L.P., 279 S.W.3d 640 (Tex. 2009) issued, mandating

arbitration of wrongful death claims brought by non-signatories against an employer. Shortly after

In re Labatt issued, counsel for Hartman wrote an email to counsel for J.B. Hunt, proposing to enter

into an agreement to jointly submit the disputes to arbitration and dismiss J.B. Hunt from the lawsuit.

Counsel for J.B. Hunt responded in part that “the only viable arbitration claims that remain are JB

Hunt’s action for attorney fees incurred in connection with the wrongful lawsuit and JB Hunt’s claim

for subrogation.” A series of emails between counsel ensued on this issue. Then, on April 1, 2009,

J.B. Hunt filed a motion to compel arbitration against plaintiffs and intervenors. The Estate of Gary

Pilat has never contested arbitration, and only Hartman responded to the motion to compel

arbitration. Therefore, the only issue before the trial court was whether Hartman was compelled to

arbitrate her claims against J.B. Hunt. Hartman asserted the defense of waiver to the motion to

compel arbitration, alleging J.B. Hunt had substantially invoked the judicial process. On May 4,

2009, the trial court held a hearing on the motion to compel arbitration, and on May 21, 2009 entered

an order denying the motion. The trial court did not enter any findings of fact or conclusions of law.

J.B. Hunt filed an interlocutory appeal and a petition for writ of mandamus.

                                             ANALYSIS

A.     Mandamus or Interlocutory Appeal

       As a preliminary matter, we first address whether this court has jurisdiction over the

interlocutory appeal and petition for writ of mandamus. In its motion to compel arbitration, J.B.


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Hunt sought to compel arbitration under the Federal Arbitration Act (hereinafter “FAA”), and/or the

Texas Arbitration Act (hereinafter “TAA”), and/or alternatively under Texas common law.

However, the arbitration agreement upon which J.B. Hunt relies to compel arbitration provides that

“the [FAA] will govern the interpretation, enforcement, and proceedings under this arbitration

requirement.”

         When there is an express agreement to arbitrate under the FAA, we have upheld such choice-

of-law provisions regardless of whether the transaction at issue involves interstate commerce. See

Teel v. Beldon Roofing & Remodeling Co., 281 S.W.3d 446, 449 (Tex. App.—San Antonio 2007,

pet. denied). As a result, because J.B. Hunt and Mr. Pilat specifically agreed to arbitrate any claims

under the FAA, we dismiss J.B. Hunt’s interlocutory appeal for lack of jurisdiction and only consider

the petition for writ of mandamus.3

B.       Valid Arbitration Agreement

         Mandamus will issue only to correct a clear abuse of discretion for which the relator has no

adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig.

proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). A trial court

has no discretion in determining what the law is or in applying the law to the facts, and a clear failure

to analyze or apply the law correctly will constitute an abuse of discretion. Walker, 827 S.W.2d at

840. When a motion to compel arbitration under the FAA has been erroneously denied, there is no


         3
            … Section 51.016 of the Texas Civil Practice and Remedies Code provides that “[i]n a matter subject to the
[FAA], a person may take an appeal or writ of error to the court of appeals from the judgment or interlocutory order of
a district court, county court at law, or county court under the same circumstances that an appeal from a federal district
court’s order or decision would be permitted by 9 U.S.C. Section 16.” T EX . C IV . P RAC . & R EM . C O D E § 51.016 (Vernon
Supp. 2009). However, section 51.016 only applies to an appeal initiated on or after September 1, 2009. Id. Because
the proceedings in this court were initiated prior to the effective date of section 51.016, this provision is not applicable
to the case at hand, and the petition for writ of mandamus is the appropriate vehicle for this court to consider J.B. Hunt’s
complaint.

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adequate remedy at law and mandamus will issue. In re D. Wilson Const. Co., 196 S.W.3d 774, 780

(Tex. 2006) (orig. proceeding).

       A party seeking a petition for writ of mandamus to compel arbitration under the FAA must:

(1) establish the existence of a valid arbitration agreement; and (2) show that the claims asserted are

within the scope of the agreement. See In re AdvancePCS Health L.P., 172 S.W.3d 603, 607 (Tex.

2005) (orig. proceeding). When, as here, a party resists arbitration, the trial court must determine

whether a valid agreement to arbitrate exists. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223,

227 (Tex. 2003). The trial court’s determination as to the validity of an arbitration agreement is

subject to de novo review. Id. Although there is a strong presumption favoring arbitration, that

presumption arises only after the party seeking to compel arbitration proves a valid arbitration

agreement exists. Id. Under both the FAA and the TAA, we apply ordinary state contract law

principles in order to decide whether a valid arbitration agreement exists. See In re D. Wilson

Constr. Co., 196 S.W.3d at 781 (citing First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944

(1995)).

       Following the Texas Supreme Court’s decision in In re Labatt, wrongful death claims

brought by non-signatories against an employer must be arbitrated if there was an agreement to

arbitrate between the employee and the employer. 279 S.W.3d at 643-46. In her response to the

motion to compel arbitration filed in the trial court, Hartman acknowledged that in light of In re

Labatt, “the Plaintiffs do not contest the validity of the respective arbitration clause as to Marissa

Hartman.” However, in this court Hartman now contests the validity of the arbitration agreement

as follows: (1) section 1 of the FAA exempts contracts of employment of seamen, railroad

employees or any other class of workers engaged in foreign or interstate commerce; (2) section


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406.033(e) of the Texas Labor Code renders the arbitration agreement void and unenforceable; and

(3) the Benefit Plan was illusory and not supported by consideration.

        1.      FAA Exemption

        Hartman asserts section 1 of the FAA exempts Mr. Pilat from the coverage of the FAA. See

9 U.S.C. § 1. Section 1 of the FAA provides that the Act does not apply to “contracts of employment

of seamen, railroad employees, or any other class of workers engaged in foreign or interstate

commerce.” Id. J.B. Hunt contends this issue was not preserved for our review because Hartman

did not present it to the trial court. We agree. An order that denies a motion to compel arbitration

must be upheld by this court if it is proper on any basis considered by the trial court. See In re Weeks

Marine, Inc., 242 S.W.3d 849, 854 (Tex. App.—Houston [14th Dist.] 2007, orig. proceeding [mand.

denied]); see also In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1998) (orig.

proceeding) (holding that appellate review is limited to the record and issues the trial court

considered when it ruled on the motion). The issue of whether section 1 of the FAA exempts Mr.

Pilat from coverage was never presented to the trial court. Therefore, we conclude this issue was

not preserved for our review.

        2.      Labor Code

        Hartman further asserts that Texas Labor Code section 406.033(e), which prohibits pre-injury

waivers of personal injury or death claims, renders the arbitration agreement void and enforceable.

J.B. Hunt again asserts this issue was not preserved for our review because Hartman did not present




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it to the trial court. We agree. See In re Weeks Marine, Inc., 242 S.W.3d at 854; see also In re

Bristol-Myers Squibb Co., 975 S.W.2d at 605.4

         3.       Illusory and Not Supported by Consideration

         Next, Hartman asserts the language in the “Funding” section of the Benefit Plan renders the

entire Benefit Plan illusory. As the Court in In re Labatt provided, “[t]here are two types of

challenges to an arbitration provision: (1) a specific challenge to the validity of the arbitration

agreement or clause, and (2) a broader challenge to the entire contract, either on a ground that

directly affects the entire agreement, or on the ground that one of the contract’s provisions is illegal

and renders the whole contract invalid.” 279 S.W.3d at 647-48. The case at hand presents the

second type of challenge: a broad challenge to the entire contract on the ground that the “Funding”

provision is illusory, and, therefore, there is no binding contract. “[U]nless a challenge is to the

arbitration clause or arbitration agreement itself, . . . the question of a contract’s validity is for the

arbitrator and not the courts.” Id. at 649. Therefore, we do not address Hartman’s assertion that the

funding section of the Benefit Plan is illusory because this issue must be decided by the arbitrator.

         As a result of the foregoing, we conclude there was a valid arbitration agreement between

Mr. Pilat and J.B. Hunt. In addition, the parties do not dispute the claims asserted by Hartman are

within the scope of the arbitration agreement. Therefore, Hartman’s wrongful death claims against

J.B. Hunt must be arbitrated unless Hartman establishes a valid defense to enforcing the arbitration

agreement.




         4
         … However, even if this issue was preserved, on November 20, 2009 the Texas Supreme Court directly
addressed the issue of whether section 406.033(e) renders an arbitration agreement void and held it does not. See In re
Golden Peanut Co., LLC, No. 09-0122, 2009 W L 3969428, at *2 (Tex. Nov. 20, 2009) (orig. proceeding).

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C.     Waiver by Substantially Invoking the Judicial Process

       Once a valid arbitration agreement has been established, a presumption attaches favoring

arbitration and the burden shifts to the party resisting arbitration to establish a defense to enforcing

arbitration. See In re AdvancePCS, 172 S.W.3d at 607; In re Hartigan, 107 S.W.3d 684, 687-88

(Tex. App.—San Antonio 2003, orig. proceeding [mand. denied]). The only defense to the

arbitration agreement asserted by Hartman in the trial court was waiver.

       A party waives arbitration by substantially invoking the judicial process to the other party’s

detriment. Perry Homes v. Cull, 258 S.W.3d 580, 589-90 (Tex. 2008). “Due to the strong

presumption against waiver of arbitration, this hurdle is a high one.” Id. at 590. Up until Perry, the

Texas Supreme Court had never found such a waiver. Id. The Court held that “a party who enjoys

substantial direct benefits by gaining an advantage in the pretrial litigation process should be barred

from turning around and seeking arbitration with the spoils.” Id. at 593. The Court concluded that

“in close cases, the ‘strong presumption against waiver’ should govern.” Id. (quoting In re D.

Wilson, 196 S.W.3d at 783). Whether a party has waived its right to arbitration is a question of law

that we review de novo, giving no deference to the trial court’s ruling. Id. at 598.

       The Texas Supreme Court has taken the federal court approach to waiver by adopting the

“totality of the circumstances” analysis. Id. at 590-91. The Court acknowledged in Perry that like

federal courts, it has considered factors such as:

               (1) when the movant knew of the arbitration clause;
               (2) how much discovery has been conducted;
               (3) who initiated the discovery;
               (4) whether it related to the merits rather than arbitrability or
                   standing;
               (5) how much of it would be useful in arbitration; and
               (6) whether the movant sought judgment on the merits.


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Id. at 591-92. “Merely taking part in litigation is not enough unless a party has substantially invoked

the judicial process to its opponent’s detriment.” In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 763

(Tex. 2006).

       In the trial court, Hartman asserted J.B. Hunt substantially invoked the judicial process by:

(1) filing multiple motions to quash the depositions of J.B. Hunt employees; (2) noticing and

deposing a co-defendant, Claudio Domingo Barrera; (3) actively participating in at least thirteen

depositions (producing seven J.B. Hunt employees, attending other depositions, and cross-noticing

depositions); (4) participating in the submission of an agreed motion for continuance; (5) waiting

fourteen months from the date the case was filed to file the motion to compel arbitration; (6) when

plaintiff brought up the issue of arbitration at the plea to the jurisdiction hearing, J.B. Hunt stated

that the issue of arbitration was not before the court; (7) requesting numerous extensions of written

discovery deadlines; (8) actively participating in pushing back the trial date; (9) refusing to sign a

confidentiality order and an order on plaintiffs’ discovery; (10) propounding requests for disclosure

and a deposition on written questions to Texas Department of Transportation; (11) filing a plea to

the jurisdiction which was denied following a hearing; and (12) failing to agree to arbitration when

plaintiffs’ counsel emailed J.B. Hunt’s counsel. In addition, in her brief to this court, Hartman notes

several times where J.B. Hunt filed motions to quash depositions, motions for protective orders, and

objections to the notice of various oral depositions.

       J.B. Hunt asserts it only propounded minimal discovery and at all times reserved its right to

seek arbitration. J.B. Hunt agrees it knew of the arbitration provision, but because the Supreme

Court had not yet ruled on In re Labatt, J.B. Hunt refrained from seeking to compel arbitration until


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after the Supreme Court issued its opinion. Other than answering discovery and cross-noticing

depositions, J.B. Hunt has conducted little discovery of its own. Most of the discovery was initiated

by plaintiffs. In addition, unlike the situation in Perry when the Supreme Court determined there

was waiver, the case at hand is not one in which the parties have waited until the eve of trial after

all or the majority of the discovery has been completed to compel arbitration. Perry, 258 S.W.3d

at 595-596. We conclude J.B. Hunt did not waive its right to compel arbitration by substantially

invoking the judicial process. Due to this finding, we do not reach the issue of whether Hartman was

prejudiced.5

                                                  CONCLUSION

         We conclude the trial court erred in denying J.B. Hunt’s motion to compel arbitration.

Accordingly, we dismiss J.B. Hunt’s interlocutory appeal for lack of jurisdiction and conditionally

grant the petition for writ of mandamus. The writ will issue only if the trial court fails to withdraw

its May 21, 2009 order denying J.B. Hunt’s motion to compel arbitration and enter an order

compelling arbitration within ten days.

                                                                        Sandee Bryan Marion, Justice




         5
           … W e acknowledge as a result of the In re Labatt opinion the law changed during the pendency of Hartman’s
case in the trial court. See 279 S.W .3d at 643-46. However, because we have concluded J.B. Hunt did not substantially
invoke the judicial process we are unable to reach the issue of prejudice.

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