Lujan v. Alorica

• Decision Date: 19 September 2014
• Docket Number: No. 08–12–00286–CV.,08–12–00286–CV.
• Parties: Gerardo LUJAN, Appellant, v. ALORICA, Individually and d/b/a Alorica, Inc., Appellee.
• Court: Texas Court of Appeals

445 S.W.3d 443

Gerardo LUJAN, Appellant

v.ALORICA, Individually and d/b/a Alorica, Inc., Appellee.

No. 08–12–00286–CV.

Court of Appeals of Texas, El Paso.

Sept. 19, 2014.

John P. Mobbs, El Paso, for Appellant.

Clara B. Burns, Kemp Smith, LLP, El Paso, for Appellee.

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

OPINION

YVONNE T. RODRIGUEZ, Justice.

After Appellant, Gerardo Lujan, filed suit for employment discrimination and retaliation, Appellee, Alorica, moved to enforce a forum-selection clause and dismiss the suit based upon its assertion that a forum-selection clause required the suit to be litigated in California. Lujan appeals the trial court's dismissal of the suit. We reverse.

BACKGROUND

Alorica's Motions for Enforcement and Dismissal

Alorica based its motions for enforcement and dismissal on the existence of a forum-selection clause set forth on the second page of a two-page letter dated October 12, 2009, and signed by Alorica's President, Y.C. Liu, which offers Lujan employment with Alorica. As a condition of accepting Alorica's offer of employment, the letter states that Lujan “will be required to truthfully and accurately complete, sign and return the ... Acceptance of Offer Letter.” The letter also provides, “In general, this offer letter when signed by you, sets forth the terms of your employment with the Company and supersede [sic] any and all prior representations and agreements, whether written or oral regarding this subject matter.” The letter then states that the parties consent to sole jurisdiction and venue in California “in any action to declare rights under, arising out of or relating to [the] Agreement, and waive any other jurisdiction and venue to which either party might be entitled by domicile or otherwise.” Thereafter, Liu's letter instructs, “If the above is agreeable to you, please sign and date below and return to Human Resources[,]” followed by the statement, “I accept this offer of employment[,]” and a signature line. The letter bears no signature. All of the foregoing are set forth on the second page of Mr. Liu's two-page letter. In its motion, Alorica acknowledged that Lujan did not sign the offer agreement but argues in a footnote that Lujan's acceptance of employment with the company after receiving the letter constitutes his acceptance of the terms of the letter under Texas and California law.

Lujan's Response

In his response opposing the motion, Lujan contended, in part, that the forum-selection clause is unenforceable because it is not valid, that he did not agree to the forum-selection clause, that Alorica bore the burden of establishing that Lujan had agreed to an exclusive forum and that the clause applied to Lujan's claims, and that Alorica had failed to satisfy its burden by showing that Lujan, who had not signed the agreement, had agreed to the forum-selection clause. To establish the existence of an enforceable contract, Lujan argued, Alorica was required to prove the making of an offer, an acceptance of the offer, the parties' mutual assent or meeting of the minds regarding the subject matter and essential terms of the contract, and the existence of consideration or mutuality of obligations. See Baylor v. Sonnichsen, 221 S.W.3d 632, 635 (Tex.2007). Lujan maintained that Alorica failed to establish the parties' mutual assent or meeting of the minds regarding the forum-selection clause and argued that Alorica bore the burden of establishing some theory that would permit enforcement of the forum-selection clause against him as a non-signatory. Lujan contended that Alorica's arguments for enforcement failed because the “alleged” forum-selection clause was purportedly presented to him before he began working for Alorica. Moreover, Lujan argued, Alorica failed to present any evidence that it unequivocally notified him of the forum-selection clause or that he had knowledge of the forum-selection clause, noting that Liu does not state that his letter to Lujan was sent by certified mail, return receipt requested, that a delivery receipt was obtained, or was hand-delivered to Lujan.

The Hearing

On July 26, 2012, the trial court heard Alorica's motion to dismiss. There, Alorica contended that Liu's letter was sent or mailed to Lujan. The affidavit of Alorica's President, Y.C. Liu and a copy of the letter was admitted into evidence over Lujan's objection. In the affidavit, Liu attests that he sent a letter to Lujan formally offering him employment with the company, that Lujan accepted employment after Liu sent the letter, and that Lujan never informed anyone that he disagreed with any terms in the offer. Alorica argued that Lujan is bound by the terms of the contract under Texas law because he accepted employment with the company, and that a rebuttable presumption exists that Lujan received Liu's letter. Alorica also noted that Lujan's response to the motion indicated that Lujan had not accepted the agreement but had made a counter offer, which Alorica contended could not occur absent Lujan's acceptance of its offer.

On the morning of the hearing, Lujan filed a supplement to his response to Alorica's motion to dismiss. Appended to the supplement is Lujan's affidavit, in which he avers that: (1) he first saw Liu's October 12, 2009, two-page letter on the day he signed his affidavit, July 26, 2012; (2) Liu's two-page letter was never presented to him; (3) he had never seen or received the second page of the letter until July 26, 2012; (4) he did not indicate his disagreement with the terms of the employment offer because he was not aware of the second page of the letter until July 26, 2012; (5) he did not and does not agree to the California forum-selection language; and (6) while employed at Alorica, he was not presented with any document or informed by any person that he was subject to filing suit against Alorica in California or that the suit would be governed by California law.

After Lujan attempted to introduce his affidavit at the hearing, the trial court sustained Alorica's objection that the affidavit was untimely because it was filed the same day as the hearing in violation of El Paso County Local Rule 3.11(e) and contradicted Lujan's admissions set forth in his response to the motion. Lujan's counsel explained to the trial court that he would have filed Lujan's affidavit earlier but had been unable to present the affidavit to Lujan for his signature until the morning of the hearing because Lujan had been fired from his employment and had no telephone. The trial court again sustained Alorica's objection.

In response to the trial court's inquiry, Lujan's counsel explained that he would not be calling witnesses to testify because Lujan had no burden of establishing the validity or enforceability of any agreement. Lujan complained that Alorica had failed to meet its burden of proving the existence of a valid and enforceable forum-selection clause, that Liu's affidavit contained an improper, conclusory statement that he had sent the letter to Lujan on the same day Lujan began working for the company, and that no one had produced any evidence that Lujan had, in fact, received the letter. Thus, Lujan argued, Alorica had failed to meet its first burden.

Lujan also noted that his suit against Alorica was not brought as an at-will employment breach-of-contract action as may fall within the scope of the forum-selection provisions in Liu's letter, but rather was filed as a discrimination and retaliation action which was not subject to the forum-selection clause. Lujan concluded his arguments by noting that it would be unreasonable and unjust to enforce the forum-selection clause because, assuming arguendo that he was subject to the clause, he would be without a forum in California since his remedies would be barred under California law, which Lujan argued does not provide for dual filing of state and EEOC claims as Texas law does. Because Alorica had not first shown the existence of a valid and enforceable forum-selection clause, and had failed to demonstrate or prove that Lujan had notice of or had received the forum-selection clause, Lujan argued that it was improper to reach “the second part of the analysis.”

The trial court granted Alorica's motion and dismissed Lujan's case with prejudice in a final judgment.

DISCUSSION

Lujan presents three issues for our review. In Issue One, Lujan contends the trial court erred and abused its discretion in sustaining Alorica's objection to his affidavit based on its same-day filing as no rule requires an affidavit to be filed sooner. In Issue Two, Lujan contends the trial court erred in dismissing his case based on the forum-selection clause because Alorica failed to meet its burden of establishing that Lujan accepted that term or was informed of its existence. In Issue Three, Lujan complains the trial court erred in dismissing his case based on the forum-selection clause because he did not sign the document containing the clause as required for acceptance of the contract under the document's express terms.

We commence our analysis with Issue Three, in which Lujan complains the trial court erred in dismissing his case because no contract was formed as set forth in Liu's letter.

Standard of Review

The proper procedural mechanism for enforcing a valid forum-selection clause that a party to the agreement has violated in filing suit is a motion to dismiss. See Young v. Valt.X Holdings, Inc., 336 S.W.3d 258, 261 (Tex.App.-Austin 2010, pet. dism'd), citing Phoenix Network Techs. (Europe) Ltd. v. Neon Sys., 177 S.W.3d 605, 610 (Tex.App.-Houston [1st Dist.] 2005, no pet.). We review a trial court's dismissal predicated on a forum-selection clause for an abuse of discretion. Stokes Interest, G.P. v. Santo–Pietro, 343 S.W.3d 441, 444 (Tex.App.-El Paso 2010, no pet.). A trial court abuses its discretion when it acts “without reference to any guiding rules and principles.” See Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex.2010), quoting Downer v....