Lucchese, Inc. v. Solano

• Decision Date: 27 June 2012
• Docket Number: No. 08–11–00101–CV.,08–11–00101–CV.
• Citation: 388 S.W.3d 343
• Parties: LUCCHESE, INC., Bartolo Mata, and Rigoberto Gutierrez, Appellants, v. Jose SOLANO, Appellee.
• Court: Texas Court of Appeals

388 S.W.3d 343

LUCCHESE, INC., Bartolo Mata, and Rigoberto Gutierrez, Appellants,

v.Jose SOLANO, Appellee.

No. 08–11–00101–CV.

Court of Appeals of Texas,

El Paso.

June 27, 2012.

Steven L. Hughes, Mounce, Green, Myers, Safi, Paxson & Galatzan, El Paso, TX, for Appellants.

Joseph Isaac, Scherr & Legate, PLLC, El Paso, TX, for Appellee.

Before McCLURE, C.J., RIVERA, and ANTCLIFF, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice.

Lucchese, Inc., Bartolo Mata, and Rigoberto Gutierrez appeal from an order granting Jose Solano's motion to strike their amended motion to compel arbitration. For the reasons that follow we reverse and remand.

FACTUAL SUMMARY

In March 2007, Jose Solano filed a non-subscriber negligence suit against his employer, Lucchese, and against his supervisors, Mata and Gutierrez,¹ alleging he suffered three on-the-job injuries in 2005–2006. On April 7, 2008, Lucchese filed a motion to compel arbitration based on an arbitration agreement contained in its Arena Brands Texas Injury Benefit Plan (the Plan). The motion to compel arbitration alleged that Solano became employed by Lucchese on September 2, 2005 and he signed an acknowledgement on September 7, 2005 reflecting that he had received and read, or had the opportunity to read, the summary plan description (SPD) which included a requirement that he arbitrate disputes relating to on-the-job injuries. Solano opposed arbitration on the ground that the arbitration agreement was illusory because Lucchese had the unilateral right to amend or terminate the Plan without notice. The trial court denied the motion to compel arbitration. On May 26, 2010, this court denied Lucchese's petition for mandamus relief because we concluded that the agreement to arbitrate was illusory. In re Lucchese, Inc., 324 S.W.3d 214, 217 (Tex.App.-El Paso 2010, orig. proceeding).

On February 11, 2011, Lucchese filed an amended motion to compel arbitration based on a different arbitration agreement which Solano had signed on the same date as the agreement related to the Plan. According to the motion and attached evidence, Lucchese also has a Problem Resolution Plan (the Program) which contains an agreement to arbitrate. The Program requires arbitration of all disputes between Lucchese and Solano whereas the other arbitration agreement relates only to disputes concerning the Plan. Under the Program, both Lucchese and Solano waived the right to trial by judge or jury and agreed that all claims covered by the Program would be arbitrated unless both parties waived the right to arbitrate in writing prior to the initiation of any litigation. The Program defined “covered disputes” as including tort claims for physical, mental, or psychological injury, without regard to whether the injury was allegedly sustained in the course and scope of employment. The Program also provided that it was governed by the Federal Arbitration Act.

In addition to the evidence related to the Program, Lucchese attached evidence showing that Lucchese had amended the Plan on September 29, 2004 to provide that the participants would be given notice of amendments or termination of the arbitration agreement. Further, any changes would not affect a claim related to an injury occurring prior to the amendment or termination. This amendment of the Plan occurred almost a year before Solano became employed by Lucchese and before he agreed to arbitrate certain disputes as a condition of his employment.

In his response to the amended motion to compel arbitration, Solano argued that the trial court should strike the amended motion and enter an order finding that Lucchese had waived its right to compel arbitration because it had failed to exercise due diligence in presenting the issue and evidence to the trial court. He also asserted that Lucchese should not be allowed to “reopen” because it had not used due diligence in obtaining the evidence. Additionally, Solano relied on the doctrine of equitable estoppel and argued that Lucchese should be estopped from filing an amended motion to compel arbitration. After a brief hearing, the trial court granted Solano's motion to strike. Lucchese filed notice of accelerated appeal from the interlocutory order. In its brief, Lucchese has included an alternative petition for writ of mandamus in the event we determine that we lack jurisdiction of the interlocutory appeal. We will address the jurisdictional issue first.

JURISDICTION OF THE INTERLOCUTORY APPEAL

Appellate courts generally have jurisdiction over final judgments, and such interlocutory orders as the Legislature deems appealable by statute. Hernandez v. Department of Family and Protective Services, ––– S.W.3d ––––, –––– (Tex.App.-El Paso 2012, no pet. h.); seeTex.Civ.Prac. & Rem.Code Ann. § 51.012 and § 51.014 (West Supp.2011). We strictly apply statutes authorizing interlocutory appeals because they are a narrow exception to the general rule that interlocutory orders are not immediately appealable. CMH Homes v. Perez, 340 S.W.3d 444, 447–48 (Tex.2011).

Relying on Section 51.016 of the Civil Practice and Remedies Code and Section 16 of the FAA, Lucchese contends that we have jurisdiction of this appeal because the trial court's order striking the amended motion to compel arbitration effectively denied the motion. Section 51.016 provides, in relevant part, that in a matter subject to the Federal Arbitration Act, ² a person may take an appeal to the court of appeals from an interlocutory order of a district court under the same circumstances that an appeal from a federal district court's order or decision would be permitted by 9 U.S.C. § 16. Tex.Civ.Prac. & Rem.Code Ann. § 51.016. The Program expressly provides that it is adopted pursuant to and is governed by the Federal Arbitration Act. Parties may expressly agree to arbitrate under the FAA. In re Rubiola, 334 S.W.3d 220, 223 (Tex.2011).

The United States Supreme Court stated in Green Tree Financial Corporation v. Randolph that the FAA generally permits immediate appeal of orders hostile to arbitration but bars appeal of interlocutory orders favorable to arbitration. Green Tree Financial Corp. v. Randolph, 531 U.S. 79, 86, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000); In re Gulf Exploration, LLC, 289 S.W.3d 836, 839 (Tex.2009). Section 16 of the FAA specifies the types of orders which may be appealed. 9 U.S.C.A. § 16(a)(1)(C)(West 2009). An appeal may be taken from:

(1) an order—

(A) refusing a stay of any action under section 3 of this title,

(B) denying a petition under section 4 of this title to order arbitration to proceed,

(C) denying an application under section 206 of this title to compel arbitration,

(D) confirming or denying confirmation of an award or partial award, or

(E) modifying, correcting, or vacating an award;

(2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject to this title; or

(3) a final decision with respect to an arbitration that is subject to this title.

We strictly apply statutes authorizing interlocutory appeals. See Texas La Fiesta Auto Sales, LLC v. Belk, 349 S.W.3d 872, 878 (Tex.App.-Houston [14th Dist.] 2011, no pet.). The substance and function of the order being appealed controls our interlocutory jurisdiction. Id.

Solano argues that we lack jurisdiction of this appeal because Lucchese's amended motion to compel arbitration is actually a motion to reconsider the trial court's prior ruling. Appellate courts have held that while Section 51.016 and Section 16 of the FAA permit an appeal from an order refusing to compel arbitration, it does not provide for an appeal from an order denying a motion to reconsider. See Wells Fargo Bank, N.A. v. Goldberg, No. 09–10–00386–CV, 2011 WL 662952 at *2 (Tex.App.-Beaumont Feb. 24, 2011, no pet.) (dismissing appeal from denial of motion to reconsider an order denying motion to compel arbitration); Nabors Well Services Company v. Aviles, No. 06–10–00018–CV, 2010 WL 2680087 (Tex.App.-Texarkana 2010, no pet.) (dismissing appeal from denial of amended motion to compel arbitration because the amended motion was not a new motion but was in substance a motion to reconsider the prior ruling); Hydro Management Systems, LLC v. Jalin, Ltd., No. 04–09–00813–CV, 2010 WL 1817813 (Tex.App.-San Antonio 2010, no pet.) (holding that Section 16 of the FAA permits an appeal from an order denying a motion to compel arbitration but not from an order denying a motion to reconsider, and therefore, order denying motion to reconsider was not independently appealable).

The instant case is distinguishable because Lucchese based its amended motion to compel arbitration on an agreement which had not previously been offered as a basis for its motion to compel arbitration. It is not merely a different version of the Plan's arbitration agreement. It is a separate and distinct agreement which stands on its own. Thus, Lucchese did not ask the trial court to reconsider its prior ruling. It instead moved the trial court to compel arbitration based on a different agreement. Thus, the amended motion included “new matter”. SeeTex. R. Civ. P. 62 (defining the object of an amendment of a pleading to include pleading new matter, in addition to that formerly pleaded).

Solano next complains that we do not have jurisdiction of this appeal because the trial court did not rule on Lucchese's amended motion to compel arbitration and the FAA does not authorize an appeal from an order striking a motion to compel arbitration. This argument presents a difficult question. On the one hand, the record does not reflect that the court conducted a hearing on the merits of the amended motion to compel arbitration nor does it show that the court expressly or even impliedly ruled on that motion. Instead, the trial court conducted a hearing on Solano's motion to strike and the court ruled on that motion. The parties did not present any evidence related to the merits of Lucchese's amended motion to compel...