Serv. Corp. Int'l v. Williams-Birdow

• Decision Date: 02 March 2023
• Docket Number: 02-22-00213-CV
• Parties: Service Corporation International, Gregory W. Spencer Funeral Directors, and Dignity Memorial Network, Inc., Appellants v. Tonyeka Williams-Birdow, Appellee
• Court: Texas Court of Appeals

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Service Corporation International, Gregory W. Spencer Funeral Directors, and Dignity Memorial Network, Inc., Appellants v. Tonyeka Williams-Birdow, Appellee

No. 02-22-00213-CV

Court of Appeals of Texas, Second District, Fort Worth

March 2, 2023

On Appeal from the 342nd District Court Tarrant County, Texas Trial Court No. 342-320822-20

Before Birdwell, Womack, and Wallach, JJ.

MEMORANDUM OPINION

Dana Womack Justice.

I. Introduction

Appellant Gregory W. Spencer Funeral Directors (Spencer)^[1] appeals from the trial court's order regarding its motion to compel arbitration of claims brought against it by Appellee Tonyeka Williams-Birdow (Williams-Birdow). In three issues, Spencer complains of the trial court's (1) striking its amended motion to compel arbitration, (2) striking its exhibit submitted as evidence in its brief and in support of its amended motion, and (3) denying its motion to compel arbitration; and in its fourth issue, Spencer argues that we should consider de novo whether the arbitration agreement is enforceable. Holding that the trial court abused its discretion by striking the amended motion and exhibit but overruling the challenge to the denial of the original motion to compel arbitration, we will reverse and remand for proceedings consistent with this opinion.

II. Background

This case arises out of the death of Williams-Birdow's husband, Albert Birdow, Jr. (Birdow), who passed away on November 1, 2018. According to Spencer, the day that Birdow died, Williams-Birdow contacted it and requested that Birdow's body be removed from her home. On the same day, the body was removed and taken to Spencer's facility. The following day, Williams-Birdow viewed Birdow's body at the facility and signed an "Identification Acknowledgement" and an "Authorization to Embalm at Funeral Establishment or Other Location."

As alleged in the pleadings, Williams-Birdow requested that she see the body in private before any services because she was not home the day Birdow died. When Williams-Birdow arrived at the funeral home, "there was a strong smell." When she got to the back of the funeral home, "Birdow's body was completely unrecognizable" and "[h]is body was bloated and distorted because he was left in an open room and not refrigerated."

The following day, the body was moved to a mortuary service and then to the Tarrant County Medical Examiner's office for autopsy. On November 8, after completion of the autopsy, the body was transported back to the mortuary service. According to Williams-Birdow's pleadings, none of these transports were discussed with or approved by her. However, she did sign an "Authorization for Cremation and Disposition" on the same day, allowing the transfer of the cremated remains from the mortuary service back to Spencer. According to Williams-Birdow, she "was forced to cremate her husband because the condition of his body could not be repaired enough to have his body inside of the church or to have an open casket."

On November 9, Williams-Birdow signed a document entitled "Statement of Funeral Goods and Services Selected/Purchase Agreement" (Contract), which contained the following paragraph:

BY SIGNING THIS AGREEMENT, YOU ARE AGREEING THAT ANY CLAIM YOU MAY HAVE AGAINST THE SELLER SHALL BE RESOLVED BY ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A COURT OR JURY TRIAL AS WELL AS YOUR RIGHT OF APPEAL.

The document was also signed by Andrea Q Franklin on behalf of "Seller," who was identified as Spencer.

Williams-Birdow ultimately filed suit against Spencer, alleging causes of action for negligence, gross negligence, negligence per se, fraud and forgery, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of contract, and breach of the Texas Deceptive Trade Practices Act. Among her claims, she alleged that Spencer owed her "a duty to properly care for her husband's remains" and that it had "left [Birdow's body] unrefrigerated which caused him to decompose at an accelerated rate," which in turn caused her to suffer "insurmountable damages because she had to see her husband's body in its bloated state, [and] she was left with no option but to have her husband cremated."

Spencer answered and later filed its "Defendant's Motion to Compel Arbitration and Abate Suit" (Motion). Attached to the Motion were (1) the Contract, which importantly consisted of only two pages; (2) "Plaintiff's Third Amended Petition"; (3) the "Identification Acknowledgement"; (4) the "Authorization to Embalm at Funeral Establishment or Other Location"; (5) the "Authorization for Cremation and Disposition"; and (6) a release that was signed by Williams-Birdow on November 10, 2018. The Motion was set for hearing on March 31, 2022.

Prior to the hearing, Williams-Birdow filed a response to the Motion, alleging that the arbitration agreement in the Contract was unenforceable because (1) "it does not meet the interstate commerce requirement under the Federal Arbitration Act or requirements under the Texas Arbitration Act," (2) "it is not a valid contract due to unconscionability," (3) "it is vague," and (4) Spencer "has substantially invoked the judicial process to [Williams-Birdow's] detriment and thus waived the right to compel arbitration." Spencer filed a reply to the response which attached March 2022 affidavits of Warren A. "Tony" Lynch and Tomekco Webster as well as an email from Williams-Birdow's attorney. The affidavit of Lynch-an employee of SCI-explained the business operations of Spencer, including the names of companies referenced in the Contract and other documents signed by Williams-Birdow. The affidavit of Webster-also identified as an employee of SCI-provided details of the execution of the Contract by Williams-Birdow and Spencer and stated that the Contract was signed by all parties at Spencer's offices rather than "in the limo on the way to [Birdow's] funeral" as alleged by Williams-Birdow's attorney in an email.

At the March 31 hearing on the Motion, the trial court raised questions regarding whether part of the Contract was missing and whether the arbitration clause was too vague to be enforceable. Williams-Birdow's attorney argued that there were "terms and conditions on the backside" of the Contract that were omitted and "could limit the terms of enforcement or could waive arbitration." Indeed, directly above the arbitration clause in the two-page Contract, were the following words: "SEE OTHER SIDE FOR TERMS AND CONDITIONS THAT ARE PART OF THIS AGREEMENT." In response to this argument, the trial court stated, "Y'all need to provide briefing on this issue." The trial court continued, "My concern is that if there were no terms and conditions that were attached to this, you're saying that you don't even know if they existed, and then this is so vague, I want something saying that it can be that vague and still be enforceable." The trial court added, "I mean, I understand they didn't provide the terms and conditions, so if you want to talk about that. This is too vague." Williams-Birdow's attorney also pointed out that Spencer's "head honcho" was deposed the previous day and stated "that this contract that they're trying to enforce was rescinded and there was a new contract." While Spencer's attorney disputed this account of the deposition, the trial court reserved its ruling and gave the parties "two weeks to get the deposition transcribed and get me something showing that she said that it was rescinded and that there is no contract currently" and "if you want to provide some kind of briefing on the issue of vagueness on the arbitration clause, then I'll look at that." The trial court ultimately set April 15 as the deadline to provide briefing and stated that the new hearing would be by submission after the deadline.

On April 12, Spencer filed its "Defendant's Amended Motion to Compel Arbitration and Abate Suit" (Amended Motion) as well as its "Brief on Vagueness and Ambiguity in Support of Defendant's Amended Motion to Compel Arbitration and Abate Suit" (Brief on Vagueness and Ambiguity). Attached to the Amended Motion were several documents. First, the Contract was again attached, but this time it consisted of four pages, including the "Terms and Conditions" referenced at the March 31 hearing. An additional arbitration clause was contained on page three of the Contract. It provided:

ARBITRATION: YOU AGREE THAT ANY CLAIM YOU MAY HAVE RELATING TO THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT (INCLUDING ANY CLAIM OR CONTROVERSY REGARDING THE INTERPRETATION OF THIS ARBITRATION CLAUSE) SHALL BE SUBMITTED TO AND FINALLY RESOLVED BY MANDATORY AND BINDING ARBITRATION IN ACCORDANCE WITH THE APPLICABLE RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"); PROVIDED, HOWEVER THAT THE FOREGOING REFERENCE TO THE AAA RULES SHALL NOT BE DEEMED TO REQUIRE ANY FILING WITH THAT ORGANIZATION, NOR ANY DIRECT INVOLVEMENT OF THAT ORGANIZATION. THE ARBITRATOR SHALL BE SELECTED BY MUTUAL AGREEMENT OF THE PARTIES. IF THE PARTIES FAIL TO OR ARE UNABLE TO AGREE ON THE SELECTION OF AN APPROPRIATE ARBITRATOR, THE AAA SHALL SELECT THE ARBITRATOR PURSUANT TO ITS RULES AND PROCEDURES UPON THE APPLICATION OF ONE OR BOTH PARTIES. THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO ANY CLAIM OR DISPUTE BETWEEN OR AMONG THE SELLER, YOU AS THE PURCHASER, ANY PERSON WHO CLAIMS TO BE A THIRD PARTY BENEFICIARY OF THIS AGREEMENT, ANY OF THE SELLER'S EMPLOYEES OR

AGENTS, ANY OF THE SELLER'S PARENT, SUBSIDIARY, OR AFFILIATE CORPORATIONS, AND ANY OF THE EMPLOYEES OR AGENTS OF THOSE PARENT, SUBSIDIARY, OR AFFILIATE CORPORATIONS, EXCEPT AS MAY BE REQUIRED BY LAW. NEITHER PARTY NOR AN ARBITRATOR MAY DISCLOSE THE EXISTENCE, CONTENT, OR RESULTS OF ANY ARBITRATION HEREUNDER WITHOUT THE PRIOR

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