                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                 §
 IN RE:                                                            No. 08-17-00161-CV
                                                 §
 DISH NETWORK, L.L.C. AND                                    AN ORIGINAL PROCEEDING
 ECHOSPHERE L.L.C.,                              §
                                                                     IN MANDAMUS
 RELATORS.                                       §

                                                 §

                                          OPINION

       Relators, DISH Network, LLC and Echosphere, LLC (referred to collectively as DISH)

have filed a mandamus petition against the Honorable Luis Aguilar, Judge of the 243rd District

Court of El Paso County, Texas, to challenge the trial court’s order permitting the real party in

interest, Yvette Delgado, to engage in pre-arbitration discovery. DISH also challenges the trial

court’s refusal to rule on its motion to compel arbitration as ordered by this Court in a prior

mandamus proceeding. See In re DISH Network, LLC and Echosphere, LLC, 528 S.W.3d 177

(Tex.App.--El Paso 2017, orig. proceeding)(In re DISH Network I)(holding that trial court abused

its discretion in deferring a ruling on former employer’s motion to compel arbitration until after

completion of discovery on a disqualification issue raised by former employee who claimed

discrimination and retaliation, where employee failed to offer any evidence that she had an express

or implied relationship with law firm in issue; ordering trial court to rule on motion to compel
arbitration within thirty days).1 We conditionally grant mandamus relief.

                                            FACTUAL SUMMARY

         Yvette Delgado was employed by DISH on December 17, 2007, and she worked as the

Human Resources Manager until her termination on August 25, 2015. Delgado filed suit against

DISH asserting claims for discrimination and retaliation.2 DISH filed a motion to compel

arbitration and it attached a copy of the signed arbitration agreement in support of its motion.

DISH authenticated the arbitration agreement with the affidavit of Katherine Leyba, the Senior

Human Resources Manager for DISH Network, LLC. Leyba’s affidavit provided as follows:

         1. My name is Katherine Leyba. The facts stated in this affidavit are within my
         personal knowledge and are true and correct and if called to testify concerning them
         under oath, I could and would testify completely thereto. I am over 18 years of age,
         have never been convicted of a felony, and I am competent in all respects to make
         this affidavit.

         2. I am currently a Senior Human Resources Manager for DISH Network L.L.C.
         (‘DISH’). I oversee matters related to human resources for various DISH customer
         service centers and was previously the direct manager over Plaintiff Yvette
         Delgado. As such, I am duly authorized to make this affidavit which is submitted
         in support of Defendants’ Motion to Compel Arbitration and Stay Proceedings
         (‘Motion’).

         3. DISH’s corporate headquarters are located in Englewood, Colorado. DISH and
         Echosphere L.L.C. are controlled by or under common control with DISH Network
         Corporation (f/k/a Echostar Communications Corporation), and both entities are
         considered to be affiliates of DISH Network Corporation. DISH provides satellite
         television services to millions of customers throughout the United States, Puerto
         Rico, and the U.S. Virgin Islands via a Direct Broadcast Satellite (‘DBS’) system.

         4. Newly hired employees at DISH are presented with a copy of, among other
         things, an arbitration agreement. Employees are required to sign the arbitration
         agreement as a condition of their employment.



1
  Delgado filed a motion to modify the opinion and judgment issued in 08-16-00300-CV effectively asking that we
extend the deadline for the trial court to rule on the motion to compel arbitration until after pre-arbitration discovery
has been completed. We have issued an order addressing the motion to modify in cause number 08-16-00300-CV.
2
  The underlying suit is styled Yvette Delgado v. DISH Network, LLC and Echosphere, LLC (cause number
2016DCV2745).

                                                          -2-
       5. As a Senior Human Resources Manager who previously oversaw the DISH
       customer service center in El Paso, Texas, I am familiar with the employment and
       personnel file of Ms. Delgado. As a condition of her employment with DISH, Ms.
       Delgado was required to sign the Arbitration Agreement entitled ‘Mandatory
       Arbitration of Disputes - Waiver of Rights Agreement’ (‘Arbitration Agreement’)
       when she was hired on or about December 17, 2007.

       6. The Arbitration Agreement signed by Ms. Delgado was part of her personnel
       file. Attached to Defendant’s Motion as Exhibit 1 is a true and correct copy of the
       Arbitration Agreement signed by Ms. Delgado. This document was made and kept
       in the ordinary course of business. It was the regular course of business at DISH
       for an employee to place the Arbitration Agreement in an employee’s personnel file
       at or near the time it was signed. The Arbitration Agreement is an exact duplicate
       of the original.

Further, the arbitration agreement requires the parties to arbitrate “any claim, controversy, and/or

dispute between them, arising out of and/or in any way related to [Delgado’s] application for

employment, employment and/or termination of employment . . . .”

       On the same day that DISH filed its motion to compel arbitration, Delgado served DISH

with notice of intent to take Leyba’s deposition, and DISH responded by filing a motion to quash

on August 31, 2016. On September 2, 2016, Delgado filed an objection to the hearing on the

motion to compel arbitration and asked the trial court to continue the hearing and permit discovery

related to her assertion that Hagan Noll and Boyle, the law firm representing DISH, should be

disqualified. In addition to raising the disqualification issues addressed in the prior mandamus

proceeding (In re Dish Network I), Delgado asserted that she was “entitled to discovery regarding

the validity of the alleged arbitration agreement before the motion to compel arbitration is heard.”

Delgado cited In re Houston Pipe Line Co., 311 S.W.3d 449, 451 (Tex. 2009) in support of her

argument. Delgado did not file a written response to the motion to compel arbitration either

denying the existence of the arbitration agreement or raising any defense to its enforcement.

       The trial court granted Delgado’s objection to hearing the motion to compel arbitration

prior to the completion of discovery regarding disqualification of Hagan Noll and Boyle, and DISH

                                               -3-
sought mandamus relief. See In re DISH Network, 528 S.W.3d at 180. On June 30, 2017, the

Court issued its opinion and judgment conditionally granting mandamus relief and holding that

the trial court abused its discretion by delaying its ruling on the motion to compel arbitration until

after discovery on the disqualification issue had been completed. See In re DISH Network, 528

S.W.3d at 187. The opinion and judgment required the trial court to rule on the motion to compel

arbitration within thirty days. Id.

        Delgado set a hearing in the trial court for July 13, 2017 on DISH’s motion to quash the

deposition of Katherine Leyba whose affidavit was submitted as an exhibit in support of DISH’s

motion to compel arbitration. Following the hearing, the trial court denied DISH’s motion to quash

the deposition. Despite the opinion’s requirement that the motion to compel arbitration be ruled

on within thirty days, the trial court set DISH’s motion to compel arbitration for hearing on

August 24, 2017. Delgado filed a motion to modify the judgment in cause number 08-16-00300-

CV to extend the deadline for the trial court to comply with our judgment to August 31, 2017 and

DISH filed a response in opposition.3 DISH filed a new mandamus petition and emergency motion

to stay trial court proceedings.        The Court granted the emergency motion and stayed all

proceedings in the underlying case pending resolution of this mandamus.

                                PRE-ARBITRATION DISCOVERY

        In its sole issue, DISH argues that the trial court clearly abused its discretion by denying

DISH’s motion to quash the deposition of Katherine Leyba and allowing Delgado to conduct pre-

arbitration discovery before ruling on the motion to compel arbitration. DISH contends that

Delgado is not entitled to pre-arbitration discovery under Texas law and our opinion and judgment

issued in cause number 08-16-00300-CV did not authorize the trial court to order pre-arbitration


3
 We delayed ruling on the motion to modify pending resolution of this mandamus proceeding. The merits of the
motion to modify will be ruled on by separate order entered in 08-16-00300-CV.

                                                    -4-
discovery.

                                       Standard of Review

       To be entitled to mandamus relief, a relator must generally meet two requirements. First,

the relator must show that the trial court clearly abused its discretion. In re Prudential Insurance

Company of America, 148 S.W.3d 124, 135 (Tex. 2004). A trial court abuses its discretion when

it acts arbitrarily, capriciously, and without reference to guiding principles. In re Green, 527

S.W.3d 277, 279 (Tex.App.--El Paso December 2, 2016, orig. proceeding); In re Mid-Century

Insurance Company of Texas, 426 S.W.3d 169, 178 (Tex.App.--Houston [1st Dist.] 2012, orig.

proceeding). Mandamus relief is appropriate when a trial court improperly orders pre-arbitration

discovery. See In re Houston Pipe Line Company, 311 S.W.3d 449, 451 (Tex. 2009)(orig.

proceeding); In re VNA, Inc., 403 S.W.3d 483, 488 (Tex.App.--El Paso 2013, orig. proceeding);

In re ReadyOne Industries, Inc., 400 S.W.3d 164, 168-69 (Tex.App.--El Paso 2013, orig.

proceeding); In re ReadyOne Industries, Inc., 394 S.W.3d 680, 685-86 and 688 (Tex.App.--El Paso

2012, orig. proceeding); In re ReadyOne Industries, Inc., 420 S.W.3d 179, 186-87 (Tex.App.--El

Paso 2012, orig. proceeding).

                                    Relevant Law and Analysis

       Texas law encourages parties to resolve disputes through arbitration. See G.T. Leach

Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 508 (Tex. 2015); TEX.CIV.PRAC.&REM.

CODE ANN. §§ 154.002, 154.027. To that end, Section 171.021 of the Civil Practice and Remedies

Code mandates a trial court to order the parties to arbitrate on the application of a party showing

an agreement to arbitrate and the opposing party’s refusal to arbitrate. TEX.CIV.PRAC.&REM.CODE

ANN. § 171.021(a)(West 2011). Motions to compel arbitration are ordinarily decided in summary

proceedings “on the basis of affidavits, pleadings, discovery, and stipulations.” Kmart Stores of



                                               -5-
Texas L.L.C. v. Ramirez, 510 S.W.3d 559, 565 (Tex.App.--El Paso 2016, pet. denied), quoting

Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992). A summary motion to compel

arbitration is essentially a motion for partial summary judgment, subject to the same evidentiary

standards. In re Jebbia, 26 S.W.3d 753, 756-57 (Tex.App.--Houston [14th Dist.] 2000, orig.

proceeding); see Jack B. Anglin, 842 S.W.2d at 269; Kmart Stores of Texas, 510 S.W.3d at 565.

A party seeking to compel arbitration must establish the existence of an arbitration agreement and

show that the claims raised fall within the scope of the agreement. In re Oakwood Mobile Homes,

Inc., 987 S.W.2d 571, 573 (Tex. 1999)(orig. proceeding). If the movant has proven there is an

arbitration agreement as a matter of law, the trial court must compel arbitration. In re Jebbia, 26

S.W.3d at 757.

       If a party opposing the motion to compel arbitration denies the existence of the agreement,

the court is required to summarily determine that issue.         TEX.CIV.PRAC.&REM.CODE ANN.

§ 171.021(b). The non-movant can resist summary arbitration by raising an issue of material fact

regarding the existence of the agreement or whether the claims fall within the scope of the

agreement. In re Jebbia, 26 S.W.3d at 757. Additionally, the non-movant can resist summary

arbitration by presenting some evidence supporting every element of a defensive claim that there

is no enforceable agreement to arbitrate. In re Jebbia, 26 S.W.3d at 757. If the non-movant raises

an issue of fact, then the trial court must forego summary disposition and conduct an evidentiary

hearing referred to as a “Tipps hearing.” See Kmart Stores of Texas, 510 S.W.3d at 565.

Conversely, if the movant carries its burden and the non-movant does not raise a material issue of

fact, the trial court is required to compel arbitration. In re Jebbia, 26 S.W.3d at 757.

       Delgado did not file a response to DISH’s motion to compel arbitration, but at the hearing

on DISH’s motion to quash the deposition notice for Leyba, Delgado’s attorney stated that “we



                                                -6-
don’t believe a valid arbitration agreement exists.” Additionally, in her written objection to the

hearing date on the motion to compel arbitration, Delgado asserted that she was “entitled to

discovery regarding the validity of the alleged arbitration agreement before the motion to compel

arbitration is heard.” Delgado cited In re Houston Pipe Line Co., 311 S.W.3d 449, 451 (Tex. 2009)

in support of this contention. The issue before the Court is whether counsel’s statement during the

hearing and Delgado’s assertion that she is entitled to discovery regarding the validity of the

arbitration agreement are sufficient to authorize the trial court to defer ruling on an otherwise

uncontested motion to compel arbitration until after pre-arbitration discovery is completed.

       Consistent with the statement made by counsel at the hearing on DISH’s motion to quash

the deposition notice, Delgado indicates in her mandamus responses that she is contesting the

existence of the arbitration agreement. Whether an arbitration agreement exists is an issue of

arbitrability. G.T. Leach Builders, 458 S.W.3d at 520. Delgado argues that she has a right to

engage in discovery before being required to even file a response to the motion to compel

arbitration. She also maintains that she is not required to file a response because DISH has the

burden to first prove the existence of an arbitration agreement. The mandamus record shows that

DISH presented prima facie evidence that an arbitration agreement exists and that the claims

presented by Delgado fall within the scope of the agreement. Consequently, the burden shifted to

Delgado to raise a fact issue regarding the existence of the arbitration agreement or to present a

defense to its enforcement. Delgado did not submit any evidence which raises a fact issue

necessitating an evidentiary hearing. Counsel’s bare assertion at the motion to quash hearing that

“we don’t believe a valid arbitration agreement exists” and Delgado’s written assertion that she is

entitled to pre-arbitration discovery are not evidence and are insufficient to create an issue of

material fact regarding the existence or validity of the agreement.



                                               -7-
       That is not to say that Delgado does not have a right to limited discovery related to the

existence of the arbitration agreement. Delgado relies on In re Houston Pipe Line Co., 311 S.W.3d

449, 451 (Tex. 2009)(orig. proceeding) in support of her argument that she is permitted to engage

in pre-arbitration discovery. In Houston Pipe Line, the relator signed an agreement to purchase

gas from O’Connor & Hewitt, Ltd., based on a specific price index. In re Houston Pipe Line, 311

S.W.3d at 450. The contract included an arbitration provision. O’Connor later sued several

defendants, including Houston Pipe Line, alleging they had manipulated the index downward. Id.

As a signatory to the contract, Houston Pipe Line sought to enforce the arbitration provision. Id.

Other defendants who were not parties to the agreement sought to compel arbitration based on a

direct benefits equitable estoppel theory. Id. O’Connor resisted arbitration by attacking the scope

of the arbitration provision and arguing it would be impossible to identify all potential defendants

and to complete damages calculations within the sixty-day period specified by the arbitration

provision for discovery. Id. Rather than rule on the motion to compel arbitration, the trial court

entered an order for discovery to assist it in ruling on the motion to compel arbitration. Id. More

specifically, the trial court ordered discovery to determine if additional defendants could equitably

invoke the arbitration clause, whether O’Connor’s claims fell within the scope of the arbitration

clause, and if the time limitations imposed by the clause were jurisdictional. In re Houston Pipe

Line, 311 S.W.3d at 450-51.

       Citing Section 171.086(a)(4) and (6) of the Civil Practice and Remedies Code, the Supreme

Court held that pre-arbitration discovery is available if the trial court lacks sufficient information

regarding the scope of an arbitration provision or other issues of arbitrability. In re Houston Pipe

Line, 311 S.W.3d at 451. The statute provides as follows:

       Before arbitration proceedings begin, in support of arbitration a party may file an
       application for a court order, including an order to:

                                                -8-
                                         .         .          .

        (4) obtain from the court in its discretion an order for a deposition for discovery,
        perpetuation of testimony, or evidence needed before the arbitration proceedings
        begin;

                                         .         .          .

        (6) obtain other relief, which the court can grant in its discretion, needed to permit
        the arbitration to be conducted in an orderly manner and to prevent improper
        interference or delay of the arbitration.

TEX.CIV.PRAC.&REM.CODE ANN. § 171.086(a)(4), (6).

The Supreme Court concluded that the trial court abused its discretion because it ordered discovery

which related to the ultimate liability of the defendants rather than the scope of the arbitration

agreement and arbitrability, and the discovery was not limited to the issues raised by the motion

to compel arbitration. In re Houston Pipe Line, 311 S.W.3d at 451.           On rehearing, the Court

observed that the trial court retained jurisdiction to order limited discovery related to scope or

arbitrability if necessary. Id. at 452 (Opn. on reh’g).

        Contrary to Delgado’s argument that she is not required to do anything to be entitled to

pre-arbitration discovery, Section 171.086(a)(4) and (6) plainly contemplates that the party seeking

discovery under the statute must file an application for a court order granting such relief. See

TEX.CIV.PRAC.&REM.CODE ANN. § 171.086(a)(4), (6)(“a party may file an application for a court

order, including an order to . . . (4) obtain from the court in its discretion an order for a deposition

for discovery, perpetuation of testimony, or evidence needed before the arbitration proceedings

begin….”). We further hold that the motion must show that the pre-arbitration discovery sought

by the party is necessary and related to the issues raised by the motion. See In re Houston Pipe

Line, 311 S.W.3d at 452 (Opn. on reh’g). This requirement is consistent with our holdings in the

In re VNA and In re ReadyOne cases that pre-arbitration discovery is available on a particular



                                                 -9-
defense if the party opposing arbitration shows or provides a colorable basis or reason to believe

that the discovery requested is material in establishing the defense. See In re VNA, Inc., 403

S.W.3d at 488; In re ReadyOne Industries, Inc., 420 S.W.3d at 186.

       Delgado did not file a motion pursuant to Section 171.086(a) and there is nothing in the

record before us to support a conclusion that the trial court permitted Delgado to depose Leyba

because it lacked sufficient information to determine whether the arbitration agreement exists.

Further, Delgado did not submit evidence contesting any aspect of Leyba’s affidavit. In her

mandamus response, Delgado argues that she should be allowed to challenge the veracity of

Leyba’s affidavit, but she does not show there is a reason to believe that Leyba’s deposition is

material to proving the arbitration agreement does not exist or that the arbitration agreement is

invalid. Thus, the trial court’s order denying DISH’s motion to quash the deposition notice is not

supported by Section 171.086(a) or In re Houston Pipe Line. We conclude that the trial court

clearly abused its discretion by denying DISH’s motion to quash the deposition of Leyba. See

TEX.CIV.PRAC.&REM.CODE ANN. § 171.021(b)(West 2011); In re VNA, 403 S.W.3d at 488

(granting mandamus relief from pre-arbitration discovery order where party opposing arbitration

failed to provide a colorable basis or reason to believe that pre-arbitration discovery was

necessary); In re ReadyOne Industries, 420 S.W.3d at 186-87 (holding that plaintiff’s affidavit

testimony did not constitute evidence of fraud in connection with existence of arbitration

agreement and did not establish a colorable basis or reason to believe pre-arbitration discovery

would be material to showing she was fraudulently induced into signing the arbitration agreement).

       Even though we have determined that the trial court abused its discretion by permitting the

pre-arbitration discovery, we find it necessary to address DISH’s additional argument that our

opinion and judgment issued in cause number 08-16-00300-CV did not authorize the trial court to



                                              - 10 -
order pre-arbitration discovery. As the Supreme Court observed in Houston Pipe Line, the trial

court retains discretion to order limited discovery upon proper application filed pursuant to Section

171.086(a)(4) and (6) if that discovery is shown to be necessary. See In re Houston Pipe Line, 311

S.W.3d at 452 (Opn. on reh’g). While we have determined that Delgado failed to properly invoke

the trial court’s jurisdiction under the statute to order the deposition of Leyba, the trial court

nevertheless retained discretion to order pre-arbitration discovery.

       Having found that the trial court clearly abused its discretion by denying DISH’s motion

to quash the deposition notice and permitting pre-arbitration discovery, we sustain Issue One and

conditionally grant the petition for writ of mandamus. The trial court is directed to withdraw its

order denying DISH’s motion to quash the deposition notice for Leyba and to enter an order

granting the motion to quash. If Delgado fails to file within thirty days from the date of this opinion

a motion establishing she is entitled to pre-arbitration discovery pursuant to Section 171.086(a)(4)

and (6) or fails to present evidence sufficient to entitle her to a Tipps evidentiary hearing, the trial

court is ordered to summarily rule on the motion to compel arbitration. The motion to compel

arbitration and any reasonable discovery must be resolved without delay. See In re Houston Pipe

Line, 311 S.W.3d at 452 (Opn. on reh’g). The writ of mandamus will issue in the event the trial

court fails to comply with our opinion and judgment.



October 24, 2018
                                                YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.




                                                 - 11 -
