                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION

                                       No. 04-18-00527-CV

                     STAGG RESTAURANTS, LLC d/b/a McDonalds #24388,
                                    Appellant

                                                 v.

                                           Fred SERRA,
                                             Appellee

                     From the 45th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2014-CI-17438
                          Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: February 13, 2019

AFFIRMED

           Stagg Restaurants, LLC d/b/a McDonald’s #24388 appeals an order denying its motion to

compel arbitration. McDonald’s argues appellee Fred Serra’s personal injury claim falls within the

scope of an enforceable arbitration agreement. Because McDonald’s failed to satisfy its burden to

establish that Serra received notice of McDonald’s arbitration policy, we affirm the trial court’s

order.
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                                   PROCEDURAL BACKGROUND

       In November 2014, Serra filed a lawsuit alleging McDonald’s negligence caused personal

injury he sustained while at work. McDonald’s filed a motion to compel arbitration and an answer

generally denying Serra’s allegations. McDonald’s also filed a brief, an affidavit, and exhibits in

support of its motion to compel arbitration.

       According to supporting documents McDonald’s attached to its motion to compel, Serra

received an occupational injury plan on July 19, 2013, containing an agreement to arbitrate

disputes arising from personal injury sustained while on the job. In a sworn affidavit filed in

response to the motion to compel, Serra stated he did not receive the occupational injury plan and

was never notified about the arbitration provision. After the trial court heard and denied the motion,

McDonald’s timely appealed.

                               MOTION TO COMPEL ARBITRATION

       The sole issue on appeal is whether the trial court erred by denying McDonald’s motion to

compel arbitration. The arbitration agreement at issue provides the agreement is governed by the

Federal Arbitration Act (FAA). “Under the FAA, a . . . party seeking to compel arbitration must

establish the existence of a valid arbitration agreement and that the claims at issue fall within the

scope of that agreement.” Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). “If the party

seeking to compel arbitration meets this burden, the burden then shifts, and to avoid arbitration,

the party opposing it must prove an affirmative defense to the provision’s enforcement, such as

waiver.” Id. If the party seeking to compel arbitration does not meet this burden, then the party

opposing the motion to compel need not prove an affirmative defense, such as waiver, to the

provision’s enforcement. See id.




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A. Standard & Scope of Review

       When parties file a motion to compel arbitration and a response, the “trial court may

summarily decide whether to compel arbitration on the basis of affidavits, pleadings, discovery,

and stipulations.” Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992). But when, as

here, “the material facts necessary to determine the issue are controverted, by an opposing affidavit

or otherwise admissible evidence, the trial court must conduct an evidentiary hearing to determine

the disputed material facts.” Id.

       “We review a trial court’s order denying a motion to compel arbitration for abuse of

discretion.” Henry, 551 S.W.3d at 115. “We defer to the trial court’s factual determinations if they

are supported by evidence but review its legal determinations de novo.” Id. When, as here, the trial

court does not make findings of fact and does not specify the basis for its order, we will infer the

trial court made all findings necessary to support its order and we will affirm the order on any

ground supported by the record. See Paragon Indus. Applications, Inc. v. Stan Excavating, LLC,

432 S.W.3d 542, 549 (Tex. App.—Texarkana 2014, no pet.).

B. Notice of the Arbitration Agreement

       “An employer may enforce an arbitration agreement entered into during an at-will

employment relationship if the employee received notice of the employer’s arbitration policy and

accepted it.” In re Dallas Peterbilt, Ltd., L.L.P., 196 S.W.3d 161, 162 (Tex. 2006) (orig.

proceeding) (per curiam). When determining whether an employee received notice of an

arbitration policy, we consider all communications between the employer and employee, not

merely the underlying agreement. Id. “Notice is a fact question,” and cases may “boil[] down to

which version of facts the trial court credits.” Kmart Stores of Tex., L.L.C. v. Ramirez, 510 S.W.3d

559, 569 (Tex. App.—El Paso 2016, pet. denied).



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       McDonald’s argues Serra is bound by the arbitration policy contained in its occupational

injury plan. Serra did not sign McDonald’s occupational injury plan, but the arbitration policy

outlined within it provided that the arbitration policy was a mandatory condition of employment

to which the employee automatically agreed when accepting and continuing employment with

McDonald’s. “While this maneuver spares an employer from having to get an employee’s physical

signature on an arbitration agreement as a prerequisite to arbitral forum access, this practice is not

without risk, . . . .” Alorica v. Tovar, No. 08-18-00008-CV, 2018 WL 6167963, at *3 (Tex. App.—

El Paso Nov. 26, 2018, no pet. h.). “[R]elying on implied consent by notice can create potential

fact issues on formation that can undermine an arbitration agreement’s validity more easily than

would a physical signature indicating that an employee affirmatively assents to arbitration.” Id.

       In support of its motion to compel arbitration, McDonald’s produced the occupational

injury plan, an affidavit from its business director George McClure, and copies of Serra’s

employment documents. McClure swore in his affidavit that Serra received a copy of the

occupational injury plan. Yet Serra’s employment documents did not include the occupational

injury plan and none mention an arbitration agreement. One of the employment documents is titled

“Initial Orientation,” and contains a list of documents, but again the occupational injury plan is not

listed. Another employment document titled “Hiring Packet Checklist” contains another list of

other employment-related documents, but the occupational injury plan is again not listed. On the

Hiring Packet Checklist, Serra initialed next to the HIPAA Authorization and “Authorization for

Initial Treatment and Prescription Services” forms, indicating he had read and understood those

forms. The Authorization for Initial Treatment and Prescription Services form, which is signed

only by a McDonald’s representative and not Serra, states: “You are authorized to provide

medically necessary treatment and/or prescription services, subject to the terms of the Employer’s

occupational injury plan for conditions related to the reported injury.” Although the form mentions
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the occupational injury plan, the form does not state whether Serra received a copy of the plan,

indicate whether Serra agreed to the plan, or mention the arbitration agreement contained in the

plan. Similarly, the HIPAA Authorization form refers to the occupational injury plan, but does not

state whether Serra received a copy of the plan, indicate whether Serra agreed to the plan, or

mention the arbitration agreement contained in the plan. Serra produced his affidavit in his

response, swearing he did not receive a copy of the occupational injury plan and was never notified

about the arbitration provision.

       None of Serra’s employment documents show that Serra agreed to or had notice of the

arbitration policy in the occupational injury plan. Although two of Serra’s employment documents

refer to the occupational injury plan, none of the documents state whether Serra received a copy

of the plan, indicate whether Serra agreed to the plan, or mention the arbitration agreement

contained in the plan. McDonald’s only evidence showing that Serra was notified about the

arbitration policy in the occupational injury plan was McClure’s affidavit. But McClure’s affidavit

testimony was discredited by Serra’s employment documents, which do not list the occupational

injury plan among the forms and policies that Serra received at the initial orientation or within his

hiring packet. Furthermore, although McClure swore in his affidavit that Serra received the

occupational injury plan and was notified about the plan’s arbitration policy, Serra swore in his

affidavit that he did not receive the occupational injury plan and was not notified about the plan’s

arbitration policy.

       Because the motion to compel arbitration and the response presented conflicting evidence

as to whether Serra received notice of the arbitration policy, McDonald’s had the burden to prove

at an evidentiary hearing that Serra received notice of the arbitration policy. See Jack B. Anglin

Co., 842 S.W.2d at 269; MP Ventures of S. Tex., Ltd., 276 S.W.3d at 529. At the hearing on

McDonald’s motion to compel arbitration, McDonald’s presented no further evidence. See Vireo,
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P.L.L.C. v. Cates, 953 S.W.2d 489, 490–91 & n.3 (Tex. App.—Austin 1997, pet. denied)

(summarily overruling challenge to sufficiency of the evidence when trial court denied motion to

compel arbitration when no evidence was received at hearing). Given the absence of evidence at

the hearing on McDonald’s motion to compel arbitration and the conflicting evidence produced in

support of McDonald’s motion, and Serra’s response, we cannot say the trial court abused its

discretion by denying McDonald’s motion to compel arbitration. See Henry, 551 S.W.3d at 115;

Alorica, 2018 WL 6167963, at *3; Kmart Stores, 510 S.W.3d at 569.

                                          CONCLUSION

       McDonald’s failed to satisfy its burden to establish that Serra agreed to the arbitration

policy it asked the trial court to enforce. Because McDonald’s did not meet this burden, Serra was

not required to establish an affirmative defense, such as waiver, to the provision’s enforcement.

See Henry, 551 S.W.3d at 115. We therefore need not address McDonald’s issue regarding waiver.

We affirm the trial court’s order denying McDonald’s motion to compel arbitration.

                                                 Luz Elena D. Chapa, Justice




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