In re Dish Network, L.L.C., 08-17-00161-CV

• Decision Date: 24 October 2018
• Docket Number: No. 08-17-00161-CV,08-17-00161-CV
• Citation: 563 S.W.3d 433
• Parties: IN RE: DISH NETWORK, L.L.C. and Echosphere L.L.C., Relators.
• Court: Texas Court of Appeals

563 S.W.3d 433

IN RE: DISH NETWORK, L.L.C. and Echosphere L.L.C., Relators.

No. 08-17-00161-CV

Court of Appeals of Texas, El Paso.

October 24, 2018

ATTORNEYS FOR REAL PARTY IN INTEREST: Hon. George P. Andritsos, Attorney at Law, 3116 Montana Ave., El Paso, TX 79903, Hon. John P. Mobbs, Attorney at Law, 7170 Westwind Dr., Ste. 201, El Paso, TX 79912.

RESPONDENT: Honorable Luis Aguilar, Judge, 243rd District Court, 500 E. San Antonio, El Paso, TX 79901.

ATTORNEYS FOR RELATORS: Hon. Steven J. Blanco, Blanco Ordonez Mata & Wallace, P. C., 5715 Cromo Drive, El Paso, TX 79912, Hon. David Michael Noll, 820 Gessner, Suite 940, Houston, TX 77024, Hon. Stephanie Ahrens Waller, Hagan Noll & Boyle, LLC, 820 Gessner, Suite 940, Houston, TX 77024.

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

OPINION

YVONNE T. RODRIGUEZ, Justice

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.

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 sought mandamus relief. See In re DISH Network I , 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 I , 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 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...