Pilot Travel Ctrs., LLC v. McCray

• Decision Date: 05 November 2013
• Docket Number: No. 05–13–00002–CV.,05–13–00002–CV.
• Citation: 416 S.W.3d 168
• Parties: PILOT TRAVEL CENTERS, LLC, Appellant v. Joan McCRAY, James McCray, and Shamekia Gullatte, as Next Friend of Brandon Gullatte, Appellees.
• Court: Texas Court of Appeals

416 S.W.3d 168

PILOT TRAVEL CENTERS, LLC, Appellant

v.Joan McCRAY, James McCray, and Shamekia Gullatte, as Next Friend of Brandon Gullatte, Appellees.

No. 05–13–00002–CV.

Court of Appeals of Texas, Dallas.

Nov. 5, 2013.

Carl Evans Jr., Stephanie Almeter, Jeffrey C. Wright, McCathern, PLLC, Dallas, TX, for Appellant.

Augustus Corbett, The Corbett Law Firm, Dallas, TX, for Appellees.

Before Justices MOSELEY, FILLMORE, and MYERS.

OPINION

Opinion by Justice FILLMORE.

In this interlocutory appeal, Pilot Travel Centers, LLC (Pilot Travel) asserts the trial court erred by denying its motion to compel arbitration and for a stay of the trial court proceedings against it. We reverse the trial court's order denying Pilot Travel's motion to compel arbitration and for stay of the trial court proceedings.

Background

On January 18, 2011, James Antonio McCray (Tony) ¹ began employment with Pilot Travel as a maintenance worker. Pilot Travel was a non-subscriber to the Texas Workers' Compensation insurance system; it provided an Occupational Injury Benefit Plan (Benefit Plan) for its Texas employees. Amendment 1 to the Benefit Plan is a Mandatory Arbitration Plan for Resolution of Work Related Injury or Illness Claims of Texas Employees (arbitration agreement). By its terms, the arbitration agreement indicates it is the exclusive and mandatory means for an employee and Pilot Travel to resolve their disputes arising from a work-related injury or illness, and neither an employee nor Pilot Travel “may bring a lawsuit in any state or federal court against the other regarding a work related injury or illness or the severity of alleged damages arising from a work related injury or illness.” More specifically, paragraph 1.05 of the arbitration agreement provides:

All employees, by applying for, accepting or by continuing employment after the implementation of this Plan, shall be required to submit any legally recognized claim for a work related injury or illness to arbitration, rather than to litigation, according to this Plan and the rules established for its enforcement. The Company shall also be required to proceed to arbitration on all work related injury or illness matters brought for arbitration by an employee. The duty imposed on both the Company and Employee to arbitrate all legally recognized claims arising from a work related injury or illness shall continue beyond and not be affected by, the termination of an employee's employment.

A document captioned “Employer Notice to Current Texas Employees” (Employer Notice), dated January 18, 2011, contains Tony's signature, initialing of paragraphs, and social security number, as well as the witness signature of Pilot Travel's representative, Brandy Allen. The Employer Notice contains an “Acknowledgment Receipt Regarding Mandatory Arbitration Plan for Texas Employees” which provides:

I, James McCray hereby certify by my initials and signature below that I have received a copy of the Mandatory Arbitration Plan. I also understand that ALL issues related to the work related injury or illness or benefits pertaining thereto MUST be settled through binding arbitration, not litigation, per Pilot Travel Centers' Mandatory Arbitration Plan. Neither party shall have the right to file a suit in any state or federal court. Any such arbitration will be governed by the Federal Arbitration Act and administered by the American Mediation Association.

(Emphasis in original.)

On January 26, 2011, Tony was working within the course and scope of his employment with Pilot Travel at a truck stop in Dallas, Texas, when he was struck by a tractor trailer rig owned by Smile Transportation and operated by Ljubo Dilber. Tony died several weeks later as a result of the injuries he sustained. At the time of his death, Tony was survived by his parents, appellees Joan and James McCray, and his son, appellee Brandon Gullatte, as represented by his next friend, Shamekia Gullatte.

The record contains Pilot Travel's July 20, 2011 demand for arbitration before the American Mediation Association, which was received by the American Mediation Association on July 21, 2011. Pilot Travel referenced the “respondents in this arbitration” as “Joan and James McCray, Individually and as Next Friends of James Antonio McCray, Deceased; The Estate of James Antonio McCray; and Shemekia Gullatte, as next Friend of Brandon Gullatte, a Minor.” Pilot Travel requested the arbitration be conducted in Dallas, Texas, where the accident occurred and where Tony was employed.

On July 22, 2011, appellees Joan and James McCray, and Shamekia Gullatte, as next friend of Brandon Gullatte, filed their original petition in a district court of Dallas County, Texas, against Pilot Travel and others in the lawsuit underlying this appeal. Appellees allege the negligence of Pilot Travel and the other named defendants proximately caused Tony's death and appellees' damages resulting from his death. On August 29, 2011, Pilot Travel filed its answer to appellees' lawsuit. Included in Pilot Travel's answer is the affirmative defense that the claims asserted in the lawsuit were the subject of a mandatory arbitration agreement signed by Tony. On September 6, 2012, Pilot Travel filed its motion to compel arbitration of appellees' claims and for a stay of appellees' lawsuit against it.

By order with a signature date of November 12, 2012, the trial court denied Pilot Travel's motion to compel arbitration (November 12, 2012 Order). The November 12, 2012 Order indicates that Pilot Travel's motion to compel arbitration was considered on November 16, 2012. By order with a signature date of December 12, 2012, the trial court again denied Pilot Travel's motion to compel arbitration (December 12, 2012 Order). Other than a mark through the November 12, 2012 date and a handwritten signature date of December 12, 2012, the December 12, 2012 Order is identical to the November 12, 2012 Order. On December 28, 2012, Pilot Travel filed its notice of interlocutory appeal of the denial of its motion to compel arbitration.

On January 16, 2013, the trial judge signed an order granting appellees' “Motion for Judgment Nunc Pro Tunc” (January 16, 2013 Order).² In the January 16, 2013 Order, the trial court found that the December 12, 2012 Order contained a clerical error; according to the trial court, the signature date of December 12, 2012 was incorrect and should have been November 16, 2012. In the January 16, 2013 Order, the trial court ordered the December 12, 2012 Order corrected to reflect the finding that the date of the trial judge's signature should be November 16, 2012.

On February 6, 2013, Pilot Travel filed its verified objection to the January 16, 2013 Order and motion to vacate that order.³ In its motion to vacate the January 16, 2013 Order, Pilot Travel stated that on December 14, 2012, it received the trial court's December 12, 2012 Order denying Pilot Travel's motion to compel arbitration. Pilot Travel stated the December 12, 2012 Order was the only signed order it received regarding its motion to compel arbitration. Citing rule of civil procedure 306a and rule of appellate procedure 26.1(b), Pilot Travel asserted its timetable for filing an interlocutory appeal of the denial of its motion to compel arbitration began to run on December 12, 2012.

On May 1, 2013, the trial court signed an “Order on [Pilot Travel's] Motion for Court to Vacate Order Granting [Appellees'] Judgment Nunc Pro Tunc and Order Denying Motion to Compel Arbitration” (May 1, 2013 Order). In the May 1, 2013 Order, the trial court vacated its January 16, 2013 Order, and again denied Pilot Travel's motion to compel arbitration.

By letter dated February 19, 2013, this Court communicated to the parties to this interlocutory appeal that, after review of the record, it appeared Pilot Travel's notice of appeal of the trial court's denial of its motion to compel arbitration was untimely under rule of appellate procedure 26.1(b) and requested that the parties file a jurisdictional brief explaining how this Court has jurisdiction over this appeal. SeeTex.R.App. P. 26.1(b).

Jurisdiction

Section 51.016 of the civil practice and remedies code provides that in a matter subject to the Federal Arbitration Act (FAA), a party may appeal from an interlocutory order of a district court “under the same circumstances that an appeal from a federal district court's order ... would be permitted by 9 U.S.C. Section 16.” Tex. Civ. Prac. & Rem.Code Ann. § 51.016 (West Supp.2012); see CMH Homes v. Perez, 340 S.W.3d 444, 448–49 (Tex.2011) (explaining that section 51.016 of the civil practice and remedies code provides for interlocutory appeals in FAA cases so long as “it would be permitted under the same circumstances in federal court under [9 U.S.C] section 16”). Section 16 of the FAA provides an appeal may be taken from an order “denying an application under section 206 of this title to compel arbitration.” 9 U.S.CA. § 16(a)(1)(C) (West 2009); Austin Commercial Contractors, L.P. v. Carter & Burgess, Inc., 347 S.W.3d 897, 900 (Tex.App.-Dallas 2011, pet. denied); Texas La Fiesta Auto Sales, LLC v. Belk, 349 S.W.3d 872, 877 (Tex.App.-Houston [14th Dist.] 2011, no pet.).

An appeal from an interlocutory order denying a motion to compel arbitration is an accelerated appeal. SeeTex.R.App. P. 28.1 (“Appeals from interlocutory orders (when allowed by statute) ... are accelerated appeals.”). In an accelerated appeal, absent a rule of appellate procedure 26.3 motion, the deadline for filing a notice of appeal is strictly set at twenty days after the appealable interlocutory order is signed. Tex.R.App. P. 26.1(b); Tex.R.App. P. 26.3; see also In re K.A.F., 160 S.W.3d 923, 927 (Tex.2005); Iron Mountain Bison Ranch, Inc. v. Easley Trailer Mfg., Inc., 964 S.W.2d 762, 763 (Tex.App.-Amarillo 1998, no pet.) (interlocutory appeal is perfected by filing notice of appeal with trial court within twenty days after judgment or order is...