                                      IN THE
                              TENTH COURT OF APPEALS

                                     No. 10-16-00408-CV

T&T ROCK DISTRIBUTION, LLC,
                                                                 Appellant
v.

RUTILIO I. VELASCO,
                                                                 Appellee



                              From the 413th District Court
                                 Johnson County, Texas
                             Trial Court No. DC- C201600551


                               MEMORANDUM OPINION


          In eleven issues, appellant, T&T Rock Distribution, LLC, complains about the trial

court’s denial of its motion to compel arbitration and stay litigation proceedings. We

affirm.

                                        I.     BACKGROUND

          In his original petition, appellee, Rutilio I. Velasco, alleged that he sustained life-

altering injuries as a result of an incident that occurred at “the Yard, which was owned,
possessed, managed, operated and/or controlled by one of more of the Defendants.” 1

Specifically, while working for appellant, Velasco was standing on the conveyor belt of a

Superior Telestacker machine while the machine was turned off, attempting to resolve an

issue with the machine. However, another worker turned the conveyor belt of the

machine on while Velasco was still standing on it or near it, which caused Velasco to be

thrown to the ground thirty feet below. As a result of the incident, Velasco asserted that

he sustained “multiple broken bones, punctured organs, and damage to his head, neck,

and face. Mr. Velasco’s diagnosis is still ongoing.” And because of these injuries, Velasco

asserted premises-liability and negligence claims against appellant.

       Among other things, appellant filed an original answer denying the allegations

contained in Velasco’s original petition, as well as a motion to compel arbitration and

stay litigation proceedings. In its motion to compel arbitration, appellant contended that

Velasco signed an arbitration agreement, which waived his right to initiate or prosecute

a lawsuit and required the arbitration of claims, including tort claims and claims arising

from work-related injuries. Appellant also asserted that Velasco’s injuries were covered

under the arbitration agreement and that the Federal Arbitration Act applied in this case.

Attached to appellant’s motion to compel arbitration were copies of the arbitration




       1  In addition to T&T Rock, KTI Incorporated, Johnson County Pipe, Inc., and Kenneth M.
Thompson, LLC were sued by Velasco. All of these parties filed a joint notice of appeal in this case;
however, KTI, Johnson County Pipe, and Kenneth M. Thompson LLC filed motions to dismiss their
appeals, which we have granted.

T&T Rock Distrib., LLC v. Velasco                                                             Page 2
agreement—one in English, which was not signed by Velasco, and what appellant refers

to as a Spanish version of the arbitration agreement that was signed by Velasco. Velasco

responded to appellant’s motion to compel arbitration arguing that “there is no

enforceable arbitration agreement in place,” among other things.

         Ultimately, after a hearing, the trial court denied appellant’s motion to compel

arbitration and stay litigation proceedings.      This accelerated, interlocutory appeal

followed. See TEX. R. APP. P. 28.1(a); TEX. CIV. PRAC. & REM. CODE ANN. § 51.016 (West

2015).

                                      II.   APPLICABLE LAW

         “Generally, we review a trial court’s decision to grant or deny a motion to compel

arbitration under an abuse of discretion standard.” Enter. Field Servs., LLC v. TOC-Rocky

Mountain, Inc., 405 S.W.3d 767, 773 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).

Under this standard, we defer to a trial court’s factual determinations if they are

supported by evidence; however, we review a trial court’s legal determinations de novo.

In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). Whether a

valid arbitration agreement exists and whether the arbitration agreement is ambiguous

are questions of law that we review de novo. In re D. Wilson Constr. Co., 196 S.W.3d 774,

781 (Tex. 2006) (orig. proceeding).

         A party seeking to compel arbitration must establish the existence of a valid,

enforceable arbitration agreement and that the claims at issue fall within that agreement’s


T&T Rock Distrib., LLC v. Velasco                                                     Page 3
scope. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding).

If the movant establishes that an arbitration agreement governs the dispute, the burden

shifts to the party opposing arbitration to establish a defense to the arbitration agreement.

In re Provine, 312 S.W.3d 824, 829 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding)

(citing In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999) (orig.

proceeding)). Once the movant established a valid arbitration agreement covering the

claims at issue, a trial court has no discretion to deny the motion to compel arbitration

unless the opposing party proves a defense to arbitration. Id. (citing In re FirstMerit Bank,

N.A., 52 S.W.3d 749, 753-54 (Tex. 2001) (orig. proceeding)).

       Because state and federal policies favor arbitration, courts must resolve any doubts

about an arbitration agreement’s scope in favor of arbitration. In re FirstMerit Bank, N.A.,

52 S.W.3d at 753. To be subject to arbitration, the “allegations need only be factually

intertwined with arbitrable claims or otherwise touch upon the subject matter of the

agreement containing the arbitration provision.” In re B.P. Am. Prod. Co., 97 S.W.3d 366,

371 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding). However, no presumption

of arbitrability arises until the court has found there is an enforceable arbitration

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

proceeding).




T&T Rock Distrib., LLC v. Velasco                                                      Page 4
                                        III.   ANALYSIS

       In its first ten issues, appellant makes numerous arguments to show that the trial

court abused its discretion by denying appellant’s motion to compel arbitration and stay

litigation proceedings. Among the arguments made by appellant on appeal are that a

valid arbitration agreement exists; that Velasco’s claims fit within the scope of the

agreement; that consideration exists to support the agreement; and that the Federal

Arbitration Act applies to this agreement. At the outset, we will address the argument

made by Velasco in the trial court and on appeal that appellants cannot rely on an

unsigned arbitration agreement.

       Though public policy favors the arbitration of disputes, arbitration is also a

creature of contract. See In re Big 8 Food Stores, Ltd., 166 S.W.3d 869, 876 (Tex. App.—El

Paso 2005, orig. proceeding) (citing Am. Heritage Life Ins. Co. v. Lang, 321 F.3d 533, 537 (5th

Cir. 2003); Ysleta Indep. Sch. Dist. v. Godinez, 998 S.W.2d 700, 702 (Tex. App.—El Paso 1999,

no pet.)). As such, a party cannot be compelled to arbitrate a dispute unless he has agreed

to do so. Id. (citing Lang, 321 F.3d at 537). Furthermore, under standard contract

principles, the presence or absence of signatures on a written contract is relevant to

determining whether the contract is binding on the parties. Id. (citing In re Bunzi USA,

Inc., 155 S.W.3d 202, 209 (Tex. App.—El Paso 2004, orig. proceeding)).

       Here, appellant asserts that Velasco signed what appellant contends is a Spanish

version of the arbitration agreement. It is undisputed that Velasco did not sign the


T&T Rock Distrib., LLC v. Velasco                                                        Page 5
English version. Nevertheless, appellant attached copies of both the English and Spanish

versions of the agreement to its motion to compel arbitration and relied on the English

version when making arguments to compel arbitration. At the hearing on the motion to

compel arbitration, appellant’s counsel noted: “The English version, if you read it, Your

Honor, even says in the severability clause, it says, ‘This Arbitration Agreement has been

translated into Spanish. In the event of conflict or apparent conflict between the Spanish

version and this version, this version will govern.’” Indeed, the English version of the

agreement does provide the aforementioned statements referenced by appellant’s

counsel.    Additionally, when this dispute arose during the hearing, the trial court

mentioned: “I don’t have any reason to doubt that the English version is the same as the

Spanish version . . . .“

       Nevertheless, on appeal, Velasco argues that appellant cannot rely on the English

version because it has not “been purported to be a translation of the Spanish document

that was presented in the trial court, much less a certified translation as required by the

Texas Rules of Civil Evidence . . . .” In making this argument, Velasco relies heavily on

Texas Rules of Evidence 902(3) and 1009. See TEX. R. EVID. 902(3), 1009.

       We are not persuaded by Velasco’s reliance on Rule 902(3), as that rule pertains to

the self-authentication of a foreign public document, which is a “document that purports

to be signed or attested by a person who is authorized by a foreign country’s law to do




T&T Rock Distrib., LLC v. Velasco                                                    Page 6
so.” Id. at R. 902(3). The document at issue here is not of the type referenced by Rule

902(3).

          On the other hand, Rule 1009 does address the type of document involved in this

case—the translation of a foreign-language document. See id. at R. 1009. Specifically,

with regard to the admissibility of a translation of a foreign-language document, a party

must, at least forty-five days before trial, serve on all parties: (1) “the translation and the

underlying foreign language document”; and (2) “a qualified translator’s affidavit or

unsworn declaration that sets forth the translator’s qualifications and certifies that the

translation is accurate.” The record does not reflect that appellant served on all parties,

at least forty-five days before trial, a translation and the underlying foreign-language

document, as well as a qualified translator’s affidavit or unsworn declaration. As such,

we cannot say that appellant satisfied the requirements of Rule 1009. See id. And because

appellant failed to satisfy the requirements of Rule 1009, we cannot say that the purported

English version of the arbitration agreement was properly before the trial court. See id.;

see also Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998) (noting that

a ruling on the admissibility of evidence will be affirmed on appeal if there is any

legitimate basis in the record to support it).

          However, despite the foregoing, appellant complains that Velasco waived his

complaint about the usage of the English version of the arbitration agreement by

appellant as a translation of the Spanish agreement that Velasco purportedly signed.


T&T Rock Distrib., LLC v. Velasco                                                        Page 7
Rule 1009 specifically addresses objections to foreign-language documents. In particular,

Rule 1009(b) provides that: “When objecting to a translation’s accuracy, a party should

specifically indicate its inaccuracies and offer an accurate translation. A party must serve

the objection on all parties at least 15 days before trial.” Id. at R. 1009(b). Moreover, Rule

1009(c) states that:

       If the underlying foreign language document is otherwise admissible, the
       court must admit—and may not allow a party to attack the accuracy of—a
       translation submitted under subdivision (a) unless the party:

             (1) Submitted a conflicting translation under subdivision (a); or

             (2) Objected to the translation under subdivision (b).

Id. at R. 1009(c). Implicit in subsections (b) and (c) of Rule 1009 is that the opposing party

provided the necessary documentation outlined in subsection (a). See id. at R. 1009.

       As noted above, appellant did not comply with the requirements of Rule 1009 to

serve on all parties, at least forty-five days before trial, a translation and the underlying

foreign-language document, as well as a qualified translator’s affidavit or unsworn

declaration. And because appellant did not serve a proper translation of the purported

Spanish version of the signed arbitration agreement, there was nothing for Velasco to

object to under Rule 1009(b), though he objected to the admissibility of the relevant

documents anyway.2 See id. at R. 1009(b). Accordingly, we are not persuaded by

appellant’s waiver contention.


       2   Velasco specifically objected that:

T&T Rock Distrib., LLC v. Velasco                                                       Page 8
       Therefore, based on the foregoing, we conclude that the trial court did not abuse

its discretion by denying appellant’s motion to compel and stay litigation proceedings

because the effect of appellant’s failure to comply with Rule 1009 was that appellant failed

to establish the existence of a valid, enforceable arbitration agreement. See id.; see also In

re Kellogg Brown & Root, Inc., 166 S.W.3d at 737; Enter. Field Servs., LLC, 405 S.W.3d at 773;

In re Jebbia, 26 S.W.3d at 756-57. Accordingly, we overrule appellant’s first ten issues, as

they presuppose the existence of a valid, enforceable arbitration agreement. See TEX. R.

APP. P. 47.1.

       Next, we address appellant’s eleventh issue, which asserts that the trial court

abused its discretion by denying appellant’s motion to compel arbitration and stay

litigation proceedings with prejudice. The entirety of appellant’s argument in this issue is

as follows:

       The Order signed by the Trial Court denied Appellants’ Motion with
       prejudice. Appellants argue there is no statute or caselaw that permits the
       Trial Court to deny a Motion to Compel Arbitration with prejudice. The
       FAA provides no legal basis and Appellants argue no caselaw permits this
       as well. See 9 U.S.C. §§ 1-16. Appellants argue the Trial Court committed
       error and abused its discretion by denying the Motion with prejudice.

Notwithstanding the fact that this issue is arguably inadequately briefed, see TEX. R. APP.

P. 38.1(i), the Fifth Circuit Court of Appeals has stated that: “If the trial court determines



       And they haven’t proved that the Spanish version that they allege that my client signed,
       which hasn’t been proven yet, is a legally sufficient translation into English and, therefore,
       the English version—They need to bring someone to do that, Judge. It’s their burden of
       proof with respect to that issue.

T&T Rock Distrib., LLC v. Velasco                                                                       Page 9
that there is no contractual relationship between the parties requiring arbitration of a

dispute between them, or that no dispute between them falls within the scope of an

arbitration agreement by which they are mutually bound, the court must deny the motion

to compel arbitration with prejudice.” ASW Allstate Painting & Constr. Co. v. Lexington Ins.

Co., 188 F.3d 307, 311 (5th Cir. 1999) (emphasis added). In light of the foregoing, we

cannot say that the trial court abused its discretion by denying appellant’s motion to

compel and stay litigation proceedings with prejudice. We overrule appellant’s eleventh

issue.

                                     IV.    CONCLUSION

         Having overruled all of appellant’s issues on appeal, we affirm the judgment of

the trial court.




                                                 AL SCOGGINS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 20, 2017
[CV06]




T&T Rock Distrib., LLC v. Velasco                                                    Page 10
