                                          COURT OF APPEALS
                                       EIGHTH DISTRICT OF TEXAS
                                            EL PASO, TEXAS


    NAZARETH HALL NURSING CENTER,                         '
                                                                               No. 08-11-00199-CV
                                    Appellant,            '
                                                                                 Appeal from the
    v.                                                    '
                                                                    County Court at Law Number Three
                                                          '
    ESPERANZA MELENDEZ,                                                   of El Paso County, Texas
                                                          '
                                    Appellee.              '                    (TC#2010-2564)



                                                  OPINION

           Nazareth Hall Nursing Center appeals the trial court’s order denying its motion to compel

arbitration. We affirm.

                          FACTUAL AND PROCEDURAL BACKGROUND

           Nazareth Hall employed Esperanza Melendez from May 1990 until July 2009. In 2006,

Melendez received an employee handbook and signed the “Employee Acknowledgment and

Arbitration Agreement” (the agreement) attached to the handbook.1 Although a signature line for

Nazareth Hall appears on the agreement, Nazareth Hall is not a signatory to the agreement.

Melendez’ signature acknowledged that she received and read the introduction to the handbook.

She also acknowledged and understood that an arbitration policy required any controversy or

claim arising out of her employment to be settled by binding arbitration. In the agreement,

Nazareth Hall reserved the right to change any of the policies or procedures in the handbook at any

time, with or without notice, and with or without cause. In May 2009, Nazareth Hall modified its

arbitration policy by separating the arbitration agreement from the “Employee Acknowledgment

1
    The Nazareth Hall employee handbook is not part of the record before us.
and Arbitration Agreement” of the employee handbook. Under the modifications, Nazareth

continued to reserve the right to amend any policies or procedures at any time with or without

notice, but also inserted new language providing that any change in the arbitration provisions

would be delivered to each employee and would only apply prospectively.                   After the

modifications, it was standard procedure for a Nazareth Hall representative to sign the agreement

on the entity’s behalf. Melendez denied receiving notice of or accepting the 2009 modified

agreement. There is no evidence in the record that the 2009 modified agreement was signed by

Melendez or Nazareth Hall.

       Melendez was discharged from employment on July 23, 2009. Melendez subsequently

filed a claim with the Equal Employment Opportunity Commission alleging that she had been

discriminated against because of her age. The Commission granted Melendez a notice of right to

file suit. Melendez filed suit for age discrimination and retaliation. Nazareth Hall filed a motion

to compel arbitration. In her response to the motion, Melendez asserted that Nazareth Hall failed

to show that the agreement met all the required contract elements. She argued that no enforceable

arbitration agreement existed because the agreement was illusory.           In addition, Melendez

contends that Nazareth Hall cannot compel arbitration because it did not sign the agreement.

After a hearing and additional briefing by the parties, the trial court denied Nazareth Hall’s motion

to compel without stating the grounds for denial. This appeal followed.

                                          DISCUSSION

       In a single issue, Nazareth Hall contends that the trial court erred by denying its motion to

compel arbitration.    First, Nazareth Hall stresses that in determining whether to compel

arbitration, courts should recognize the strong policy in favor of arbitration under Texas and


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federal law. Second, Nazareth Hall asserts that the arbitrator, not the court should determine the

issue of an illusory contract. Third, Nazareth Hall contends that the lack of its signature on the

agreement does not terminate its right to compel arbitration.

                                       Standard of Review

       We review a trial court’s denial on a motion to compel arbitration for an abuse of

discretion. Sidley Austin Brown & Wood, LLP v. J.A. Green Dev. Corp., 327 S.W.3d 859, 862-63

(Tex. App. – Dallas 2010, no pet.). A trial court’s determination regarding the validity of an

arbitration agreement is subject to de novo review. J.M. Davidson, Inc. v. Webster, 128 S.W.3d

223, 227 (Tex. 2003). In evaluating a motion to compel arbitration, we must first determine

whether a valid arbitration agreement exists between the parties. In re D. Wilson Constr. Co., 196

S.W.3d 774, 781 (Tex. 2006). When a trial court refuses to compel arbitration pursuant to a valid

and enforceable arbitration agreement it abuses its discretion. In re Halliburton Co., 80 S.W.3d

566, 573 (Tex. 2002).

                                         Applicable Law

       The parties do not dispute that the FAA applies to this proceeding. See 9 U.S.C.A. §§ 1-

16 (West 2009). A party seeking to compel arbitration must establish the existence of a valid

arbitration agreement and show that the claims presented fall within the scope of that agreement.

In re Dillard Dept. Stores, Inc., 186 S.W.3d 514, 515 (Tex. 2006); In re AdvancePCS Health L.P.,

172 S.W.3d 603, 605 (Tex. 2005); Budd v. Max International, LLC, 339 S.W.3d 915, 918 (Tex.

App. – Dallas 2011, no pet.). Here, Melendez does not argue that the asserted claims are not

covered within the scope of the arbitration agreement. Rather, she challenges whether an

agreement to arbitrate was ever entered into by the parties.


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       While there is a strong presumption in favor of arbitration, it arises only after a valid

arbitration agreement is proven to exist. J.M. Davidson, 128 S.W.3d at 227. Generally, when

determining if a valid enforceable arbitration agreement exists, courts not arbitrators consider

gateway issues such as whether a valid arbitration clause exists and whether it binds a nonparty.

In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005); Stanford Development Corp. v.

Stanford Condominium Owners Ass’n, 285 S.W.3d 45, 48 (Tex. App. – Houston [1st Dist.] 2009,

no pet.); see also In re Morgan Stanley & Co., 293 S.W.3d 182, 190 (Tex. 2009) (any claim which

questions the existence of an arbitration agreement is a question for the court); In re Rubiola, 334

S.W.3d 220, 224–25 (Tex. 2011) (whether non-signatory can compel arbitration depends on

existence of valid agreement between specific parties and is therefore a gateway matter for the

court to determine). However, the parties may agree to submit gateway matters to arbitration.

See Rent-A-Center, W., Inc. v. Jackson, ---U.S.----, 130 S.Ct. 2772, 2777, 177 L.Ed.2d 403 (2010).

       In determining the validity of an arbitration agreement, we apply the principles of state

contract law. In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 676 (Tex. 2006) (citing First

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920 (1995)); In re Kellogg

Brown & Root, Inc., 166 S.W.3d 732, 738 (Tex. 2005). The elements needed to form a valid and

binding contract are (1) offer; (2) acceptance in strict compliance with the offer’s terms; (3) a

meeting of the minds; (4) consent by both parties; (5) execution and delivery; and (6)

consideration. Advantage Physical Therapy Inc. v. Cruse, 165 S.W.3d 21, 24 (Tex. App. –

Houston [14th Dist.] 2005, no pet.).

       Mutual promises to arbitrate employment constitute sufficient consideration for such

agreements. D.R. Horton, Inc. v. Brooks, 207 S.W.3d 862, 868 (Tex. App. – Houston [14th Dist.]


                                                 4
2006, no pet.). An arbitration agreement is illusory if one party is able to “avoid its promise to

arbitrate by amending the provision or terminating it altogether.” In re 24R, Inc., 324 S.W.3d 564,

567 (Tex. 2010); In re Lucchese Boot Co., 324 S.W.3d 211, 213 (Tex. App. – El Paso 2010, no

pet.) (promise to arbitrate not illusory where it cannot be avoided by change or termination); see

also Carey v. 24 Hour Fitness, USA, Inc., 669 F.3d 202, 206-09 (5th Cir. 2012) (finding arbitration

agreement illusory because employer could unilaterally modify or terminate provision at any

time); Morrison v. Amway Corp., 517 F.3d 248, 254 (5th Cir. 2008) (same). “When illusory

promises are all that support a purported bilateral contract, there is no mutuality of obligation, and

therefore, no contract.” In re 24R, Inc., 324 S.W.3d at 567.

                                              Analysis

                           Who Decides The Court or The Arbitrator?

       Nazareth Hall first complains that the trial court erred in denying its motion to compel

because an arbitrator, rather than a trial court should determine whether the arbitration agreement

is illusory. Melendez responds that the issues before the trial court were contract-formation

issues which should be decided by a court, not an arbitrator. We agree that the issue presented is

whether any valid arbitration agreement exists.

       In general, when the validity of a contract containing the arbitration agreement is

challenged, the issue is for the arbitrator as long as the agreement is valid. See In re FirstMerit

Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001) In contrast, when the very existence of an arbitration

agreement is challenged as opposed to its continued validity or enforcement, it is a matter for the

court. See In re Morgan Stanley, 293 S.W.3d at 189. Here, Melendez disputes the existence of a

valid arbitration agreement because the agreement she signed in 2006 lacked consideration as a


                                                  5
result of Nazareth Hall retaining the unilateral right to change the policies and procedures within

the agreement and it was not signed by Nazareth Hall. She also contends that Nazareth Hall never

notified her of the May 2009 modified agreement and that she never accepted that agreement.

Whether an arbitration agreement is in existence is an argument directed at the actual making of

the contract; accordingly, it is an issue for the court to decide. Id. Because Melendez attacks the

existence of a valid arbitration agreement based on lack of consideration and because Nazareth

Hall is not a signatory to the agreement her claims go directly to the making of a valid contract,

thus it is an issue left to the resolution of the court. See id.

        But even assuming the issues do not attack the existence of the agreement and instead go to

the validity and enforceability of the agreement which would be decided by the arbitrator, as

argued by Nazareth Hall, Melendez’ claims would still be decided by the trial court because

Nazareth Hall’s agreement expressly reserved questions of validity and enforceability to the court,

not the arbitrator. See Rent-A-Center, 130 S.Ct. at 2777 (recognizing parties can agree to arbitrate

questions of arbitrability); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct.

1920, 131 L.Ed.2d 985 (1985) (power to decide arbitrability depends on what the parties agreed to

about the matter); AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649, 106

S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986) (holding parties may agree to arbitrate arbitrability).

Here, the agreement provided that “[a]ny lawsuits challenging the validity and enforceability of

this arbitration provision will be brought in a court of competent jurisdiction in El Paso County,

Texas.” The agreement clearly delegated power to the court to decide any claims concerning its

validity and enforceability and thus, the issues here were for the court and not the arbitrator. See

id.


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                          Does a Valid Arbitration Agreement Exist?

       Nazareth Hall next contends that an enforceable, non-illusory arbitration agreement exists

because Melendez was an at-will employee who acknowledged receipt of its arbitration policy and

continued to work after the date she signed the agreement. Therefore, Nazareth Hall argues

Melendez consented to the agreement. Melendez argues that there is no agreement in existence

because the agreement she signed lacked consideration and as such it is illusory and

unenforceable.


                                      The 2006 Agreement


       An arbitration agreement is valid if it meets the general requirements of the applicable

state’s contract law. In re Poly-America, L.P., 262 S.W.3d 337, 347 (Tex. 2008). The initial

determination of whether an enforceable agreement exists is decided by the application of contract

law. Id. at 348; In re Palm Harbor Homes, 195 S.W.3d at 676.


       Here, when Melendez signed the 2006 agreement she acknowledged that as a condition of

her employment and continued employment any controversy or claim related to her employment

were required to be settled by binding arbitration. The agreement states that it is equally binding

on both parties and that both parties waive their right to a jury trial. Under the 2006 agreement,

Melendez is free to terminate employment at any time, with or without notice as can Nazareth Hall

for any reason not prohibited by law. However, the 2006 agreement expressly allows Nazareth

Hall to unilaterally amend the agreement at any time and without notice. Therefore, even though

the agreement states that it is binding on both parties, Nazareth Hall’s promise to arbitrate is

illusory because Nazareth Hall can unilaterally change the agreement at any time without notice.


                                                7
See In re Datamark, Inc., 296 S.W.3d 614, 617 (Tex. App. – El Paso 2009, no pet.). Because the

agreement lacks binding promises from Nazareth Hall to Melendez as required in the formation of

a contract, there was no consideration and there is no enforceable arbitration agreement. See In re

24R, Inc., 324 S.W.3d at 567.


                                      The 2009 Agreement


       In her appellate brief, Melendez argues that the 2009 modified agreement was not an

enforceable contract because there was no evidence that she ever accepted or knew about the

modified agreement. Nazareth Hall has not directly addressed this argument on appeal even

though it was asserted below. However, Nazareth Hall asserts that it had an arbitration policy in

place, Melendez signed the agreement, and continued to work until 2009, which constituted

acceptance of its arbitration policy. As it is unclear if Nazareth Hall is referring to the 2006 or

2009 agreements or both, we will address Melendez’ cross-point regarding the 2009 agreement.


       Because arbitration is a creature of contract, a party cannot be compelled to arbitrate a

dispute unless an agreement to do so exists. In re Bunzl USA, Inc., 155 S.W.3d 202, 209 (Tex.

App. – El Paso 2004, orig. proceeding).        An employer asserting a change in an at-will

employment contract must show that the employee received notice of the change and accepted the

change. In re Halliburton Co., 80 S.W.3d 566, 568 (Tex. 2002). When an employer notifies the

employee of the change and he or she continues working with knowledge of the change, the

change is accepted as a matter of law. Id. Here there is no evidence in the record and Nazareth

Hall does not prove that Melendez was ever notified of the 2009 modified agreement or that she

accepted the agreement. Accordingly, the 2009 modified agreement is invalid and unenforceable


                                                8
against Melendez. Id.


       Because there was no valid and enforceable agreement in either 2006 or 2009, Nazareth

Hall has failed to prove that a valid arbitration agreement existed between the parties.

Accordingly, we conclude that the trial court did not err in denying Nazareth Hall’s motion to

compel arbitration and need not address Nazareth Hall’s additional contention that the absence of

its signature on the 2006 agreement was not fatal to its right to compel arbitration. See In re

Dillard Dept. Stores, 186 S.W.3d at 515 (a party seeking to compel arbitration must prove the

existence of a valid arbitration agreement); see also TEX. R. APP. P. 47.1 (“The court of appeals

must hand down a written opinion that is as brief as practicable but that addresses every issue

raised and necessary to final disposition of the appeal.”). We overrule Nazareth Hall’s sole issue

on appeal.


                                        CONCLUSION

       We affirm the judgment of the trial court.


                                             GUADALUPE RIVERA, Justice
June 29, 2012

Before McClure, C.J., Rivera, J., and Chew, C.J., (Senior)
Chew, C.J., (Senior), sitting by assignment




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