Ascendant Anesthesia Pllc v. Abazi

• Decision Date: 02 August 2011
• Docket Number: No. 05–11–00115–CV.,05–11–00115–CV.
• Citation: 348 S.W.3d 454
• Parties: ASCENDANT ANESTHESIA PLLC and Richard Toussaint, M.D., Appellants,v.Alketa ABAZI, Appellee.
• Court: Texas Court of Appeals

348 S.W.3d 454

ASCENDANT ANESTHESIA PLLC and Richard Toussaint, M.D., Appellants,

v.Alketa ABAZI, Appellee.

No. 05–11–00115–CV.

Court of Appeals of Texas, Dallas.

Aug. 2, 2011.

Monte K. Hurst, Lauren Zimmerman Farkas, Katherine Khristine Elrich, Hermes Sargent Bates, L.L.P., Dallas, TX, for Appellants.Robert Edward Wolf, Ryan H. Anderson, Jeffrey H. Rasansky, Rasansky Law Firm, Dallas, TX, for Appellee.Before Justices RICHTER, LANG, and FILLMORE.

OPINION

Opinion By Justice LANG.

In this interlocutory appeal, Ascendant Anesthesia PLLC (“Ascendant”) and its “founder and chief” Richard Toussaint, M.D. (collectively, “appellants”) appeal the trial court's order denying Ascendant's motion to compel arbitration of claims for damages between Ascendant's former employee Alketa Abazi and appellants. In two issues on appeal, appellants assert the trial court erred by refusing to compel arbitration of the claims at issue because (1) a valid agreement exists requiring binding arbitration of such claims and (2) Ascendant did not waive its right to arbitration.

We conclude the trial court erred by denying the motion to compel arbitration. Accordingly, we reverse the trial court's order denying Ascendant's motion to compel arbitration, render judgment granting that motion, and remand this case to the trial court for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ascendant provides anesthesia services in facilities where surgeries are performed, including hospitals and surgery centers. Abazi was employed by Ascendant as “practice administrator” for approximately one year.

After Ascendant terminated Abazi's employment, Ascendant filed this suit against Abazi seeking injunctive relief, damages, and a declaratory judgment. In its original petition, Ascendant alleged that “over the course of her employment, Ms. Abazi unlawfully converted patients' medical records that belong to Ascendant or Dr. Toussaint, in methodically devising a long-term plan to ultimately extort money from Ascendant and/or Dr. Toussaint by threatening to disclose a fabricated and completely unfounded tale that Ascendant engaged in illegal billing practice.” Additionally, Ascendant alleged that after it terminated Abazi, she “published to third parties confidential and proprietary information belonging to Ascendant, including patients' information, patients' billing records, and records illustrating or pertaining to billing activity with regard to those patients' accounts.”

At approximately the same time Ascendant's original petition was filed, the trial court signed a temporary restraining order pursuant to an agreement between Ascendant and Abazi. That temporary restraining order directed Abazi to immediately surrender to Ascendant any and all protected health information and confidential documents belonging to Ascendant and prohibited Abazi from disclosing any and all protected health information.

Abazi filed a general denial answer, a counterclaim against Ascendant, and a third party claim against Toussaint. Abazi sued Ascendant and Toussaint jointly for wrongful termination, breach of contract, and intentional infliction of emotional distress and asserted a defamation cause of action against Toussaint. Further, Abazi filed a third party claim for tortious interference against AccuPro Services, Ltd. (“AccuPro”), a company alleged to be affiliated with Ascendant and Toussaint. Finally, a petition in intervention was filed by Janis Mrozek against AccuPro for wrongful termination and against Ascendant and Toussaint for tortious interference.

Approximately three weeks after the filing of Abazi's counterclaims, Ascendant filed a motion to compel arbitration in which it cited the following provision (the “arbitration provision”) from its “Anesthesia Policies” (“Policies”):

By accepting and continuing the employment relationship Ascendant and each employee agree that any controversy, dispute or claim between an employee and Ascendant, except for disputes involving any employee's obligations involving noncompetition, non solicitation and disclosure of information belonging to Ascendant, shall be settled by final and binding arbitration in accordance with the Employment Arbitration Rules of the American Arbitration Association.

In its motion, Ascendant contended the arbitration provision encompasses (1) “all of the claims for damages between Abazi and Ascendant, including the counterclaims asserted by Abazi” and (2) “the claims Abazi asserts against [Toussaint] in his individual capacity.” Ascendant requested that the trial court “order the parties to pursue their respective claims for damages in arbitration, pursuant to the [arbitration provision].”

Abazi raised two grounds on which the motion to compel arbitration should be denied. First, Abazi claimed the parties intended for the arbitration provision to apply only to disputes between current employees and Ascendant. Abazi maintained that because she is a former employee, rather than a current employee, Ascendant cannot compel arbitration in this case. Alternatively, Abazi argued that assuming the arbitration provision encompasses the claims at issue, the trial court should deny the motion because Ascendant waived its right to arbitrate by substantially invoking the judicial process to Abazi's detriment.

Although Ascendant's motion sought to compel arbitration of Abazi's claims for damages against both Ascendant and Toussaint, Abazi raised no objection to arbitration of her claims against Toussaint other than the two grounds set out above. Further, Abazi did not dispute in the trial court that the claims between her and appellants are otherwise subject to the arbitration provision and such provision is enforceable under the Federal Arbitration Act (“FAA”). See 9 U.S.C.A. §§ 1–16 (West, Westlaw through August 2, 2011). Ascendant's motion to compel arbitration did not seek arbitration as to Abazi's claims against AccuPro or Mrozek's claims against AccuPro, Ascendant, and Toussaint.

After a hearing, the trial court signed an order stating, “Based upon the pleadings on file, the motion and response, and the arguments of counsel, the Court determines that Plaintiff Ascendant Anesthesia, PLLC's Motion should be, and is, in all respects DENIED.” (emphasis original). This interlocutory appeal timely followed. See Tex. Civ. Prac. & Rem.Code Ann. § 51.016 (West Supp. 2010).

II. STANDARD OF REVIEW AND APPLICABLE LAW

We apply an abuse of discretion standard of review respecting interlocutory appeals under section 51.016 of the Texas Civil Practice and Remedies Code. Sidley Austin Brown & Wood, LLP v. J.A. Green Dev. Corp., 327 S.W.3d 859, 862–63 (Tex.App.-Dallas 2010, no pet.). Under that standard, “we defer to the trial court's factual determinations if they are supported by evidence, but we review the trial court's legal determinations de novo.” In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex.2009). Whether an arbitration clause imposes a duty to arbitrate is a matter of contract interpretation and a question of law for the Court to review de novo. BDO Seidman, LLP v. J.A. Green Dev. Corp., 327 S.W.3d 852, 854 (Tex.App.-Dallas 2010, no pet.). In a de novo review, the trial court's decision is given absolutely no deference. Id.

A party seeking to compel arbitration under the FAA must establish that (1) there is a valid arbitration agreement, and (2) the claims raised fall within the agreement's scope. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex.2005). “Arbitration agreements are interpreted under traditional contract principles.” J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003).

When parties disagree over the meaning of an unambiguous contract, the court must determine the parties' intent by examining and considering the entire writing in an effort to give effect to the parties' intentions as expressed in the contract. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006); Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983); Nicol v. Gonzales, 127 S.W.3d 390, 394 (Tex.App.-Dallas 2004, no pet.). The parties' intent must be taken from the agreement itself, and the agreement must be enforced as written. Wells Fargo Bank, Minn., N.A. v. N. Cent. Plaza I, L.L.P., 194 S.W.3d 723, 726 (Tex.App.-Dallas 2006, pet. denied); Nicol, 127 S.W.3d at 394; see also Nat'l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995) (only where contract is first determined to be ambiguous may courts consider parties' interpretation or admit extraneous evidence to determine true meaning of instrument). We “examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.” Seagull Energy E & P, Inc., 207 S.W.3d at 345; accord MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex.1999). “No single provision taken alone will be given controlling effect; rather, all the provisions must be considered with reference to the whole instrument.” Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex.2011) (citing Coker, 650 S.W.2d at 393).

“Doubts regarding an agreement's scope are resolved in favor of arbitration because there is a presumption favoring agreements to arbitrate under the FAA.” In re Kellogg Brown & Root, Inc., 166 S.W.3d at 737; accord In re Rubiola, 334 S.W.3d 220, 225 (Tex.2011). “Such a presumption is particularly applicable where the clause is broad.” BDO Seidman, LLP, 327 S.W.3d at 857. “In such cases, ‘[i]n the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail.’ ” Id. (citing AT & T Tech., Inc. v. Commc'n Workers of Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)). “[A]n order to arbitrate the particular grievance should not be denied unless it...