                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00249-CV


BRAND FX, LLC D/B/A BRAND FX                                        APPELLANT
BODY COMPANY

                                        V.

CURTIS RHINE                                                          APPELLEE


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           FROM THE 271ST DISTRICT COURT OF WISE COUNTY
                    TRIAL COURT NO. CV14-05-321

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                                   OPINION

                                     ----------

      In this interlocutory appeal, appellant Brand FX, LLC appeals from the trial

court’s order denying its motion to compel arbitration and later motion to

reconsider. We reverse the trial court’s order and remand for entry of an order

compelling arbitration.
                                I. BACKGROUND

                         A. EMPLOYMENT WITH BRAND FX

      Appellant Brand FX, LLC is “a Delaware limited liability company” that is

publicly traded.   Brand FX designs, produces, markets, and sells utility truck

bodies and touts revenues of $75,000,000. On October 4, 2013, Brand FX hired

appellee Curtis Rhine as its chief financial officer. On November 6, 2013, Rhine

signed an employment contract with Brand FX, which set out Brand FX’s

performance expectations, provided for severance pay if Rhine was fired “for any

reason other than [c]ause,” and mandated that any employment disputes would

be subject to arbitration. The arbitration clause provided:

      Any dispute related to your employment, performance, or
      compensation shall be resolved exclusively through arbitration, held
      in New York, New York by and in accordance with the rules of the
      American Arbitration Association. Decisions of the arbitrator shall be
      in accordance with applicable state law and not based upon the
      principle of ex-aequo et bono.[1] The arbitrator shall state the
      reasons for any award and shall not have the power to amend or
      modify this agreement. The unsuccessful party shall pay all costs of
      arbitration, including costs of the other party.

On November 27, 2013, Rhine entered into a separate subscription agreement

with Brand FX under which Rhine was able to buy publicly-traded Brand FX stock

and acquire a 1% interest in Brand FX.

      On February 13, 2014, Brand FX’s chief executive officer and Rhine’s

immediate supervisor, Art De St. Aubin, informed Rhine by letter of “concerns

      1
        This doctrine allows a decision-maker to decide issues under equitable
principles instead of legal rules. Black’s Law Dictionary 679–80 (10th ed. 2014).

                                         2
with respect to [Rhine’s] employment,” delineated several instances of “willful

misconduct,” and offered Rhine “an opportunity to cure” (the notice letter). De St.

Aubin warned Rhine that if he failed to improve within thirty days, he would be

fired for cause as provided in the employment contract. On March 17, 2014,

Brand FX fired Rhine for cause.

      B. UNDERLYING SUIT, DEFAULT, AND MOTION TO COMPEL ARBITRATION

      Rhine filed suit against Brand FX, alleging that Brand FX (1) committed

“statutory libel per se” by asserting in the notice letter that Rhine committed willful

misconduct and (2) breached the employment contract by failing to provide a

cure period in good faith, falsely asserting his termination was for cause, and

failing to give him severance pay. After Brand FX failed to timely answer, Rhine

moved for default judgment as to Brand FX’s liability. See Tex. R. Civ. P. 239.

The trial court granted the motion for default judgment and set a hearing for July

17, 2014 to hear evidence regarding Rhine’s unliquidated damages. See Tex. R.

Civ. P. 243. On July 15, 2014, Brand FX filed a motion to compel arbitration and

also sought to have the default judgment set aside and a new trial ordered. In its

motion to compel, Brand FX raised the arbitration provision in the employment

contract, asserted that Rhine’s claims fell within the scope of the agreement, and

sought arbitration “to the American Arbitration Association consistent with the

terms of [the arbitration] agreement.” The trial court set a nonevidentiary hearing

on Brand FX’s motions for July 28, 2014.



                                          3
      Rhine filed a response to Brand FX’s motion to compel on July 25, 2014,

three days before the hearing. Rhine asserted that the arbitration clause was

unenforceable because Brand FX waived its right to arbitrate and because the

agreement was substantively unconscionable.             Although Rhine served the

response on Brand FX by certified mail, Brand FX did not receive the response

until after the hearing and the trial court’s ruling.

      At the July 28 hearing, Rhine asserted for the first time that the arbitration

clause was governed by the Texas Arbitration Act (the TAA) and not the Federal

Arbitration Act (the FAA). The distinction was important because under the TAA,

a personal-injury claim may not be subject to an arbitration agreement unless the

party’s attorney signs the arbitration agreement. See Tex. Civ. Prac. & Rem.

Code Ann. § 171.002 (West 2011). Rhine also argued that the agreement was

unconscionable and that Brand FX had waived arbitration. Brand FX asserted

that the agreement was governed by the FAA because of its activities involving

interstate commerce and that it had not waived its right to arbitrate.       At the

hearing, the trial court denied the motion to compel but set aside the default

judgment.

                              C. MOTION TO RECONSIDER

      On August 5, 2014, Brand FX filed a motion to reconsider the denial to

allow the trial court to “address [Rhine’s] arguments” raised at the hearing and

included in Rhine's response, which Brand FX received after the hearing and the

trial court’s ruling. Brand FX attached De St. Aubin’s affidavit, which expounded

                                            4
upon Brand FX’s activities involving interstate commerce and averred that

Rhine’s duties included supervising Brand FX’s financial activities in Brand FX’s

manufacturing locations in Iowa, Indiana, Minnesota, and Texas. Brand FX more

fully responded to Rhine’s waiver argument and addressed whether the

agreement was substantively unconscionable. In its prayer for relief, Brand FX

requested that the trial court grant the motion to reconsider, abate Rhine’s case,

and “order [Rhine] to submit his claims to the American Arbitration Association

consistent with the terms of their agreement.” The trial court set a nonevidentiary

hearing on Brand FX’s motion to reconsider for August 11, 2014.              Rhine

responded to the motion to reconsider on August 7, 2014, and asserted that any

evidence filed in support of the motion to reconsider that was not part of the trial

court’s initial determination could not be taken into account on reconsideration.

Rhine then asserted that because there was no evidence supporting an

interstate-commerce connection, the TAA applied; thus, his defamation claim

was not subject to the arbitration agreement. Finally, Rhine contended that the

agreement was unconscionable, violated the rules of the American Arbitration

Association (the AAA), and was waived. In addition, Rhine filed a motion to

strike Brand FX’s new evidence—namely, De St. Aubin’s affidavit—submitted

with its motion to reconsider.

      At the hearing, Brand FX expounded on its arguments that the FAA

applied, and Rhine asserted that no new evidence on the issue could be

considered.   Brand FX argued that its motion to reconsider was necessary

                                         5
because it was “unaware that [Rhine] was going to argue that the [TAA] applied.”

Brand FX again raised its argument that the arbitration agreement was

enforceable and that Rhine’s claims fell within its scope. On August 15, 2014,

the trial court denied Brand FX’s motion to reconsider but did not rule on Rhine’s

motion to strike. On August 18, 2014, Brand FX filed a notice of appeal from the

order denying its motion to compel and from the order denying its motion to

reconsider. In a sole issue, Brand FX asserts that the trial court abused its

discretion by failing to compel arbitration.

                                  II. DISCUSSION

                             A. SCOPE OF OUR REVIEW

      Rhine asserts that we may not consider the evidence Brand FX submitted

with its motion to reconsider to support its argument that the FAA applied.

Indeed, Rhine has filed a motion to strike “any untimely evidence” from the

clerk’s record. Rhine bases his argument on the fact that an interlocutory appeal

from a motion to reconsider the denial of a motion to compel is not statutorily

authorized.    Thus, Rhine posits that any filings relating to the motion to

reconsider are not properly part of this appeal, which is only authorized as to the

denial of the motion to compel.

      We conclude that striking properly filed trial court documents from the

clerk’s record would be inappropriate. Any document that was filed in the trial

court is subject to designation in the clerk’s record. See generally Tex. R. App.

P. 34.5. But our scope of review is not determined by a document’s inclusion in

                                           6
the clerk’s record. See In re C.A.K., 155 S.W.3d 554, 559 (Tex. App.—San

Antonio 2004, pet. denied) (refusing to strike items from clerk’s record and noting

“inclusion of a document in the clerk’s record does not necessarily mean it is

relevant to the merits of the appeal”); Roventini v. Ocular Sciences, Inc., 111

S.W.3d 719, 726 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (recognizing

filing of supplemental clerk’s record does not compel consideration of its

contents). If we may appropriately consider a document in the clerk’s record as

part of our authorized review of a trial court’s order or judgment, we will. And the

converse is true as well.      See generally Hon. Deborah Hankinson & Rick

Thompson, Standards and Scope of Review, 29 The Advocate (Tex.) 6, 6 (2004)

(“The scope of review, as the name suggests, delineates the portion of the

appellate record that an appellate court may consider in deciding whether the

trial court erred and whether that error warrants reversal.”). Therefore, we deny

Rhine’s motion to strike portions of the clerk’s record.

      But we are still left with the question of whether the evidence Rhine

submitted to the trial court in support of its motion to reconsider should be

considered in our review of the trial court’s denial of arbitration. 2 Interlocutory

orders may be appealed only if permitted by statute and only to the extent

jurisdiction is conferred by statute. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266,

      2
        Rhine does not argue that Brand FX failed to timely file its notice of
appeal; thus, our jurisdiction is not at issue. Rhine only asserts that the
legislature’s limited grant of appellate jurisdiction over interlocutory appeals
affects the scope of our review, not our jurisdiction in this instance.

                                          7
272 (Tex. 1992) (orig. proceeding).    We strictly construe statutes authorizing

interlocutory appeals because they are a narrow exception to the general rule

that interlocutory orders are not immediately appealable. CMH Homes v. Perez,

340 S.W.3d 444, 447–48 (Tex. 2011); 3 Roy W. McDonald & Elaine Carlson,

Texas Civil Practice § 19:56 (2d ed. 2000 & Supp. 2013–14). Under both the

FAA and the TAA, the denial of a motion to compel arbitration is immediately

appealable, but the denial of a motion to reconsider the denial of a motion to

compel arbitration is not immediately appealable. See 9 U.S.C.A. § 16 (West

2009); Tex. Civ. Prac. & Rem. Code Ann. § 51.016 (West 2015), § 171.098

(West 2011); Nazareth Hall Nursing Ctr. v. Castro, 374 S.W.3d 590, 593–94

(Tex. App.—El Paso 2012, no pet.); AXA Fin., Inc. v. Roberts, No. 03-07-00079-

CV, 2007 WL 2403210, at *3 (Tex. App.—Austin Aug. 23, 2007, no pet.) (mem.

op.).

        We conclude that we may not consider any new evidence submitted in

support of Brand FX’s motion to reconsider. Although we have jurisdiction over

this appeal because Brand FX filed its notice of appeal within twenty days after

the trial court denied its motion to compel, we may not review the denial of the

motion to reconsider. Our statutory authorization does not extend to such orders

under either the FAA or the TAA. See 9 U.S.C.A. § 16; Tex. Civ. Prac. & Rem.

Code Ann. §§ 51.016, 171.098. In its motion to reconsider, Brand FX requested

the same relief and relied on the same arbitration agreement that it had included

in its motion to compel. See Nazareth Hall, 374 S.W.3d at 594 (concluding

                                       8
interlocutory appeal from denial of motion to reconsider not authorized under the

FAA because motion to reconsider based on same arbitration agreement which

was subject of motion to compel); cf. Lucchese, Inc. v. Solano, 388 S.W.3d 343,

348–49 (Tex. App.—El Paso 2012, no pet.) (holding interlocutory appeal from

amended motion to compel authorized under the FAA because amended motion

to compel was based on separate and different arbitration agreement than

agreement relied on in original motion to compel; thus, amended motion was not

a disguised motion to reconsider). Further, the arguments Brand FX raised to

the trial court at the hearing on its motion to compel were again included in its

motion to reconsider.      Therefore, because an interlocutory appeal is not

authorized from the denial of a motion to reconsider in these circumstances, we

will not consider any new evidence submitted in support of Brand FX’s motion to

reconsider. Cf. Lopez v. Casa Pontiac GMC Buick, Inc., No. 14-11-00001-CV,

2011 WL 5926683, at *4 (Tex. App.—Houston [14th Dist.] Nov. 29, 2011, no pet.)

(mem. op.) (holding affidavit filed after motion to compel denied, which raised

unconscionability defense to arbitration, could not be considered as evidence

supporting the defense).

      Brand FX heavily relies on a mandamus opinion from the Texas Supreme

Court in which the supreme court considered evidence submitted in support of a

motion to reconsider the denial of a motion to compel and concluded that the

FAA applied to an arbitration agreement. In re Nexion Health at Humble, Inc.,

173 S.W.3d 67, 68 (Tex. 2005) (orig. proceeding).      In Nexion, however, the

                                       9
supreme court merely determined that Nexion did not waive its right to arbitration

under the FAA merely because it raised the application of the FAA for the first

time in its motion to reconsider. Id. at 68–69. The Nexion court was not faced

with statutory authorization to review the denial of a motion to reconsider the

ruling on a motion to compel arbitration and whether that statutory authorization

extended to a review of a denial of a motion to reconsider. Indeed, interlocutory

appeals from the denial of a motion to compel were not authorized until 2009.

See In re Santander Consumer USA, Inc., 445 S.W.3d 216, 218 (Tex. App.—

Houston [1st Dist.] 2013, orig. proceeding). Thus, Nexion is inapplicable to the

procedural posture of this appeal.

                                B. FAA OR TAA?

      Brand FX argues that the FAA applied to the trial court’s determination of

the enforceability of the arbitration agreement. Rhine contends that because

Brand FX did not meet its burden to prove application of the FAA, the TAA

applies. As we stated before, this distinction is important because it determines

which claims are subject to the arbitration agreement. See Tex. Civ. Prac. &

Rem. Code Ann. § 171.002.

      The FAA applies to any contract that contains a written agreement to

arbitrate, covers a dispute at issue, and involves interstate commerce.      See

9 U.S.C.A. § 2; Tex. Echo Land & Cattle, LLP v. Gen. Steel Domestic Sales,

LLC, No. 02-12-00372-CV, 2013 WL 3064513, at*1 (Tex. App.—Fort Worth June

20, 2013, no pet.) (mem. op.). Rhine argues that the TAA applies to the

                                       10
enforceability of the arbitration agreement because Brand FX failed to carry its

burden to show that the contract involved interstate commerce. Because the

arbitration agreement at issue did not explicitly state that the FAA or the TAA

applies, Brand FX bore the burden to show that the FAA governed the arbitration

agreement. See IKON Office Solutions, Inc. v. Eifert, 2 S.W.3d 688, 696 (Tex.

App.—Houston [14th Dist.] 1999, no pet. & orig. proceeding). This burden is not

onerous and is satisfied with evidence that the contract in fact has some link to

interstate commerce.    See Wee Tots Pediatrics, P.A. v. Morohunfola, 268

S.W.3d 784, 789–90 (Tex. App.—Fort Worth 2008, no pet. & orig. proceeding);

Palm Harbor Homes, Inc. v. McCoy, 944 S.W.2d 716, 719–20 (Tex. App.—Fort

Worth 1997, orig. proceeding). “Commerce under the [FAA] is broadly construed

and the amount of commerce considered in the contract need not be substantial.”

In re Chevron U.S.A., Inc., 419 S.W.3d 329, 336 (Tex. App.—El Paso 2010, orig.

proceeding [mand. denied]).

      In the employment context, the “relationship between an employer who is

regularly engaged in activities related to interstate commerce and its employees

is affected by interstate commerce as a matter of law and implicates commerce

clause issues.” In re Big 8 Food Stores, Ltd., 166 S.W.3d 869, 880 (Tex. App.—

El Paso 2005, orig. proceeding). The evidence before the trial court when it

decided Brand FX’s motion to compel showed that Brand FX was incorporated in

Delaware with its principal place of business in New York. See Jack B. Anglin,

842 S.W.2d at 270 (holding court may consider pleadings and any other

                                       11
evidence before the trial court at the time of the motion to compel arbitration to

determine whether a contract affects interstate commerce). Brand FX designs,

manufactures, produces, and sells composite (as opposed to steel) utility truck

bodies, toppers, and inserts. The trucking industry is commonly known to involve

interstate commerce. Cf. Forged Components, Inc. v. Guzman, 409 S.W.3d 91,

98 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (holding manufacturer of steel

for the oil-and-gas industry was engaged in interstate commerce for purposes of

the FAA); Chevron, 419 S.W.3d at 336 (concluding arbitration agreement

governed by the FAA because claims to be arbitrated concerned the oil-and-gas

industry, which involves interstate commerce as “a matter of common

knowledge”).   Although Rhine was hired to work out of Brand FX’s office in

Texas, Rhine’s position as CFO required him to oversee Brand FX’s financial

operations at all its locations. Brand FX’s “Operating Partner” who offered Rhine

the job with Brand FX was located in New York. Rhine’s employment with Brand

FX provided for Rhine’s ability to purchase a percentage ownership interest in

Brand FX, a publicly-traded corporation.

      We conclude that these facts established as a matter of law that the

parties’ contract affected or involved interstate commerce; thus, the arbitration

agreement was governed by the FAA. 3 See, e.g., Capital Income Props.–LXXX



      3
       As a result, the arbitration agreement governed Rhine’s personal-injury
claim—statutory libel per se—even though not signed by Rhine’s attorney. See
In re Macy’s Tex., Inc., 291 S.W.3d 418, 419 (Tex. 2009) (orig. proceeding). The
                                       12
v. Blackmon, 843 S.W.2d 22, 23 (Tex. 1992) (orig. proceeding); Forged

Components, 409 S.W.3d at 98; Am. Med. Techs., Inc. v. Miller, 149 S.W.3d 265,

269 (Tex. App.—Houston [14th Dist.] 2004, no pet. & orig. proceeding).

Accordingly, we will review the trial court’s factual and legal determinations

regarding the enforceability of the arbitration agreement under the dictates of the

FAA.

                             C. STANDARD OF REVIEW

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

discretion. Garcia v. Huerta, 340 S.W.3d 864, 869 (Tex. App.—San Antonio

2011, pet. denied). See generally 6 Roy W. McDonald & Elaine Carlson, Texas

Civil Practice § 44:19[a] (2d ed. rev. 2014) (discussing appellate standard of

review regarding arbitration issues). In this review, we defer to a trial court’s

factual findings if they are supported by the evidence but accord no deference to

a trial court’s resolution of questions of law. Perry Homes v. Cull, 258 S.W.3d

580, 598 (Tex. 2008), cert. denied, 555 U.S. 1103 (2009).

       Whether there is a valid and enforceable arbitration agreement is a legal

question subject to de novo review. Id.; Garcia, 340 S.W.3d at 869. Once the

party seeking to compel arbitration proves that a valid arbitration agreement

exists, a strong presumption in favor of arbitration arises and the burden shifts to

the party resisting arbitration to establish a defense to enforcing arbitration.

FAA preempts the TAA’s signature requirement for personal-injury claims.
Nexion, 173 S.W.3d at 69.

                                        13
Whether the party resisting arbitration has established a defense to arbitration—

such as waiver or unconscionability—is a legal issue also subject to de novo

review.   In re Poly–Am., L.P., 262 S.W.3d 337, 348 (Tex. 2008) (orig.

proceeding); Perry Homes, 258 S.W.3d at 598; Delfingen US–Tex., L.P. v.

Valenzuela, 407 S.W.3d 791, 798 (Tex. App.—El Paso 2013, no pet.).             The

determination of any facts relevant to a defense, however, is a question of fact

for the trial court, which we review deferentially for record support. Delfingen,

407 S.W.3d at 798–800. If an arbitration agreement is present, the claims are

encompassed by the agreement, and the party opposing arbitration failed to

prove any defense to enforcement, the trial court has no discretion but to compel

arbitration. See In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753–54 (Tex. 2001)

(orig. proceeding). In other words, a trial court that refuses to compel arbitration

under a valid and enforceable arbitration agreement has abused its discretion. In

re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex.) (orig. proceeding), cert.

denied, 131 S. Ct. 319 (2010).

                D. ENFORCEABILITY OF ARBITRATION AGREEMENT

      Rhine does not assert that he and Brand FX did not enter into an

arbitration agreement or that his claims do not fall within the scope of the

arbitration agreement under the FAA.         Rhine contends that the arbitration

agreement is unenforceable because Brand FX waived its right to seek

arbitration and the agreement itself was substantively unconscionable.



                                        14
                                     1. Waiver

      Rhine argues that Brand FX waived the right to compel arbitration by

substantially invoking the judicial process. Rhine asserts that by moving for a

new trial and by failing to move for arbitration before its liability was established,

Brand FX substantially invoked the judicial process to Rhine’s detriment and,

thus, waived its right to arbitration. A party waives an arbitration provision when

it substantially invokes the judicial process to the other party’s detriment. In re

Bank One, N.A., 216 S.W.3d 825, 827 (Tex. 2007) (orig. proceeding). “[T]here is

a strong presumption against waiver,” and even if present, it must be intentional.

EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 89 (Tex. 1996) (writ of error & orig.

proceeding). The Texas Supreme Court has explicitly held that a party does not

substantially invoke the judicial process by moving to set aside a default

judgment and requesting a new trial. Bank One, 934 S.W.2d at 827; see also

Paul Jacobs, P.C. v. Encore Bank, N.A., No. 01-12-00699-CV, 2013 WL

3467197, at *4 (Tex. App.—Houston [1st Dist.] July 9, 2013, no pet.) (mem. op.)

(collecting cases regarding what actions are not considered substantial

invocation). We can hold no differently here and therefore conclude that Brand

FX did not substantially invoke the judicial process such that it waived its right to

compel arbitration. Rhine failed to meet his burden to establish waiver.

                               2. Unconscionability

      Rhine next argues that the arbitration agreement was substantively

unconscionable because it potentially would shift the costs of the arbitration to

                                         15
Rhine if he lost, New York is not an appropriate forum, and the arbitrator does

not have the ability to modify the agreement.           As we previously stated,

unconscionability is a question of law that we review de novo, while deferring to

the trial court’s discretion to determine the facts relevant to the issue.      See

Whataburger Restaurants LLC v. Cardwell, 446 S.W.3d 897, 908 (Tex. App.—El

Paso, 2014, pet. filed). Rhine’s unconscionability arguments raise the gross one-

sidedness of the agreement’s terms. See Olshan Found. Repair Co. v. Ayala,

180 S.W.3d 212, 215 (Tex. App.—San Antonio 2005, pet. denied). We conclude

that Rhine failed to meet his burden to prove his defenses to enforcement of the

arbitration agreement; thus, the trial court’s contrary conclusion on these issues

of law was an abuse of discretion.

      Rhine first contends that the cost-shifting provision renders the agreement

unconscionable.     Although excessive costs of arbitration may in certain

circumstances render an arbitration agreement substantively unconscionable, the

potential for shifting costs, standing alone, does not render an arbitration

agreement unconscionable.       FirstMerit Bank, 52 S.W.3d at 757; Lawson v.

Archer, 267 S.W.3d 376, 384 (Tex. App.—Houston [14th Dist.] 2008, no pet. &

orig. proceeding); In re Weeks Marine, Inc., 242 S.W.3d 849, 859–60 (Tex.

App.—Houston [14th Dist.] 2007, orig. proceeding [mand. denied]). There is no

evidence in the record to support the amount of potential costs or Rhine’s

inability to pay those potential costs should he lose. Rhine failed to establish that

the cost-shifting provision rendered the agreement unconscionable. See Green

                                         16
Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92, 121 S. Ct. 513, 522 (2000); Pilot

Travel Ctrs., LLC v. McCray, 416 S.W.3d 168, 181–82 (Tex. App.—Dallas 2013,

no pet.); G.T. Leach Builders, L.L.C. v. TCMS, Inc., No. 13-11-310-CV, 2012 WL

506568, at *5–6 (Tex. App.—Corpus Christi Feb. 16, 2012, no pet.) (mem. op.);

cf. Olshan Found., 180 S.W.3d at 215–16 (holding evidence of amount of AAA’s

fees combined with plaintiff’s testimony that he could not pay the fees

established arbitration agreement was unconscionable).

      As part of his unconscionability argument based on cost shifting, Rhine

asserts that the applicable arbitration rules—the rules of the AAA—prohibit the

shifting of fees onto the losing party. As pointed out by Brand FX, the AAA rule

relied on by Rhine solely addresses arbitrator expenses and does not expressly

prohibit other cost shifting between the parties. Further, Rhine’s failure to submit

any evidence supporting his argument that the cost shifting would be unfair or

unreasonably one-sided is fatal to his unconscionability argument.             See

Whataburger, 446 S.W.3d at 912–13 (holding no evidence admitted to show AAA

fees and costs specifically applicable to arbitration; thus, trial court erred by

concluding agreement unconscionable); Shamrock Foods Co. v. Munn &

Assocs., Ltd., 392 S.W.3d 839, 848–50 (Tex. App.—Texarkana 2013, no pet.)

(holding   trial   court   erred   by   concluding   agreement   was   substantively

unconscionable because no evidence showed costs of arbitration would be

prohibitively expensive). See generally 7 Tex. Jur. 3d Arbitration & Award § 26

(2013) (discussing considerations courts use to determine if agreement

                                           17
unconscionable based on excessive cost and noting employee must present

supporting evidence).

      Rhine next argues that the choice of forum in the agreement—New York—

renders the agreement unconscionable because New York is not an adequate

and accessible substitute to litigation. His argument solely rests on the increased

expenses involved if all parties and witnesses were required to travel to New

York to arbitrate the dispute. Again, it was Rhine’s burden to prove the likelihood

of incurring such costs and to provide some specific information concerning

those potential costs. See Odyssey Healthcare, 310 S.W.3d at 422; Poly–Am.,

262 S.W.3d at 356. “[T]he ‘risk’ that [a claimant] will be saddled with prohibitive

costs is too speculative to justify the invalidation of an arbitration agreement.”

Green Tree, 531 U.S. at 91, 121 S. Ct. at 522. Other than Rhine’s conclusory

assertions that he might incur substantial costs and expenses if all parties and

witnesses are located outside of New York and if he fails to prevail, there is no

record evidence showing what the costs would be or that those costs would

consume his potential recovery. Rhine failed to carry his burden to show the

forum-selection clause in the arbitration agreement was unconscionable. See

Odyssey Healthcare, 310 S.W.3d at 422.

      In his final argument, Rhine asserts that the agreement is unconscionable

because the arbitrator does not have the discretion to amend or modify the

agreement.    We can find no case law supporting Rhine’s assertion that a

limitation on the authority of the arbitrator, which does not preclude the arbitrator

                                         18
from interpreting the parties’ agreement and applying it to the facts of the dispute,

renders an arbitration agreement unconscionable. Although Rhine cites Poly–

America in support of his assertion, that case merely provided that because the

contract at issue allowed the arbitrator to modify unconscionable terms, the cost-

splitting provision could not be found unconscionable. Poly–Am., 262 S.W.3d

at 357.    We do not read Poly–America to require a conclusion that all

agreements not giving the arbitrator discretion to modify the agreement are

unconscionable as a matter of law.       Further, this argument is predicated on

Rhine’s assertion that the cost provisions are unconscionable, rendering the lack

of arbitrator discretion to modify the cost provisions likewise unconscionable. We

already have concluded that Rhine failed to carry his burden to show that the

cost provisions were unconscionable; therefore, his lack-of-discretion assertion

fails as well.

                                III. CONCLUSION

       Although we did not consider any evidence submitted in support of Brand

FX’s motion to reconsider, we conclude that Brand FX showed that its

employment contract with Rhine affected interstate commerce such that the FAA

applies to the arbitration agreement.     Brand FX met its burden to show the

existence of a valid arbitration agreement between the parties; however, Rhine

failed to meet his burden to prove his defenses against enforcing the otherwise

valid arbitration provision. See FirstMerit Bank, 52 S.W.3d at 756. Thus, the trial

court clearly abused its discretion by failing to compel arbitration. See Odyssey

                                         19
Healthcare, 310 S.W.3d at 422. We sustain Brand FX’s issue on appeal, reverse

the trial court’s order denying Brand FX’s motion to compel arbitration, and

remand to the trial court for entry of an order compelling the parties’ dispute to

arbitration pursuant to the parties’ arbitration agreement. See Tex. R. App. P.

43.2(d), 43.3(a); IHS Acquisition No. 171 v. Beatty-Ortiz, 387 S.W.3d 799, 810

(Tex. App.—El Paso 2012, no pet.).



                                                  /s/ Lee Gabriel

                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: February 26, 2015




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