IN RE: C & H NEWS COMPANY--Appeal from 357th District Court of Cameron County

NUMBER 13-02-149-CV

COURT OF APPEALS

  THIRTEENTH DISTRICT OF  TEXAS

    CORPUS CHRISTI  -  EDINBURG

IN RE: C & H NEWS COMPANY

On Petition for Writ of Mandamus

  O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Chief Justice Valdez

Relator, Nueces News Agency, Inc., d/b/a ETD KroMar, Southern Division (designated in the court below as C & H News Co.), has filed a petition for writ of mandamus, asking that this Court compel respondent, the Honorable Rolando Olvera, Judge of the 357th District Court of Cameron County, Texas, to (1) vacate an order denying relator=s motion to compel arbitration; and (2) enter an order compelling arbitration. We deny relator=s request for issuance of mandamus.

The real parties in interest, Odilia Gallegos, individually and on behalf of the Estate of Jesus Gallegos, Sr., Eva G. Guajardo, Guadalupe Gallegos, Elizabeth De La Paz, and Jesus Gallegos, Jr., filed suit against relator, in Respondent=s court, seeking damages. Real parties in interest allege that the death of Jesus Gallegos, Sr., one of relator=s former employees, was proximately caused by the negligence of relator and/or its agents. Soon after said litigation was commenced, relators moved the trial court to compel the parties to arbitration based on an arbitration agreement signed by Jesus Gallegos, Sr., and relator. The respondent denied relator=s motion to compel.

Mandamus is the appropriate remedy when a trial court improperly denies a motion to compel arbitration pursuant to the Federal Arbitration Act.[1] 9 U.S.C. ' 1, et seq. (2002); In re L & L Kempwood Assocs., L.L.P., 9 S.W.3d 125, 128 (Tex. 1999) (per curiam); Davidson v. Webster, 49 S.W.3d 507, 510 (Tex. App.BCorpus Christi 2001, orig. proceeding). A party seeking to compel arbitration must establish the existence of an arbitration agreement and show that the claims raised fall within the scope of that agreement. In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999) (per curiam); Davidson, 49 S.W.3d at 511. When one party denies he is bound by an arbitration agreement, the trial court must summarily determine whether an agreement to arbitrate exists between the parties. Tex. Civ. Prac. & Rem. Code Ann. ' 171.021 (Vernon Supp. 2002); Davidson, 49 S.W.3d at 511; ANCO Ins. Servs. of Houston, Inc. v. Romero, 27 S.W.3d 1, 5 (Tex. App.BSan Antonio 2000, pet. denied). Once a party establishes a claim within the scope of the arbitration agreement, the trial court must compel arbitration and stay its own proceedings, unless the party opposing arbitration meets its burden of presenting evidence that prevents enforcement. Oakwood, 987 S.W.2d at 573; Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996) (per curiam).

We review a trial court's determination concerning the existence of an arbitration agreement under an abuse of discretion standard. Davidson, 49 S.W.3d at 511; ANCO Ins. Servs., 27 S.W.3d at 5. Under this standard, we must uphold the trial court's decision unless we conclude that the trial court could reasonably have reached only one decision. Davidson, 49 S.W.3d at 511; Hardin Const. Group, Inc. v. Strictly Painting, Inc., 945 S.W.2d 308, 312 (Tex. App.BSan Antonio 1997, orig. proceeding [mand. denied]). Legal conclusions, however, are reviewed de novo. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Whether an agreement imposes a duty on the parties to arbitrate a dispute is a matter of contract interpretation and a question of law for the court. Tenet Healthcare Ltd. v. Cooper, 960 S.W.2d 386, 388 (Tex. App.BHouston [14th Dist.] 1998, writ dism'd w.o.j.); City of Alamo v. Garcia, 878 S.W.2d 664, 665 (Tex. App.BCorpus Christi 1994, no writ).

In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument. Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex. 1983); Garner v. Corpus Christi National Bank, 944 S.W.2d 469, 474 (Tex. App.BCorpus Christi 1997, writ denied). In this context, courts should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Coker, 650 S.W.2d at 393-94.; First Victoria Nat'l Bank v. Briones, 788 S.W.2d 632, 634 (Tex. App.BCorpus Christi 1990, writ denied). An unsigned paper may be incorporated by reference in a contract signed by a party sought to be charged. Teal Constr. Co. / Hillside Villas Ltd. v. Darren Casey Interests, Inc., 46 S.W.3d 417, 420 (Tex. App.BAustin 2001, pet. denied) (citing Owen v. Hendricks, 433 S.W.2d 164, 166 (Tex.1968)). The specific language used is not important so long as the contract signed by the defendant plainly refers to another writing. Teal Constr. Co., 46 S.W.3d at 420. When a document is incorporated into another by reference, both instruments must be read and construed together. Wolfe v. Speed Fab-Crete Corp. Int'l, 507 S.W.2d 276, 278 (Tex. Civ. App.BFort Worth 1974, no writ).

In the present case, Relator asserts that it has established the existence of an arbitration agreement and has shown that the claims raised fall within the scope of that agreement; therefore, Relator concludes that the trial court abused its discretion in not ordering the parties to arbitration. The arbitration agreement which is the subject of this proceeding is a one page document entitled AMutual Agreement to Arbitrate,@ and reads, in part, as follows:

I understand and acknowledge that as a condition of continued employment with ETD, the company and I have voluntarily promised and agreed to submit all claims or disputes between us to binding arbitration as provided in the Handbook.

The agreement provides for Aarbitration as provided in the Handbook,@ and therefore, we find that the agreement incorporates, by reference, portions of the employee handbook into the agreement. Relator has not provided a complete copy of the handbook to this Court for review[2], and therefore, we do not have the entire agreement before us. In interpreting the arbitration agreement in the present case, we must consider the entire writing, which includes those provisions of the handbook incorporated by reference. Coker, 650 S.W.2d at 393; Wolfe, 507 S.W.2d at 278. As the party seeking relief, the relator had the burden of providing this Court with a sufficient record to establish its right to mandamus relief. Walker, 827 S.W.2d at 837. Since relator is attempting to establish that the underlying claim of the real parties in interest falls within the scope of the arbitration agreement, relator had the burden of providing us the complete arbitration agreement. See Tex. R. App. P. 52.3(j); see also Fina Oil and Chemical Co. v. Salinas, 750 S.W.2d 32, 34 (Tex. App. BCorpus Christi 1988) (original proceeding) (ANormally, in a mandamus proceeding, it is incumbent upon the relator to bring forward all the elements of the record below to enable the appellate court to render a decision.@) Having failed to meet this burden, Relator has not provided us with a record upon which it can establish its right to mandamus relief. Accordingly, we cannot say that respondent abused his discretion in refusing to compel the parties to arbitration.

The dissent argues that we fail to follow well-recognized U.S. Supreme Court precedent, because we refuse to order the trial court to compel arbitration. The dissent misinterprets our opinion. We recognize that the Federal Arbitration Act is applicable to the present case; however, this alone is insufficient to grant Relator=s request for mandamus. We cannot grant mandamus relief unless, and until, the party requesting relief meets his burden of providing a sufficient record to establish his right to mandamus relief. Walker, 827 S.W.2d at 837. Relator has not met its burden. In rendering our decision, we uphold the law of the United States and of this State, and any suggestion to the contrary is unfounded.

Relator=s petition for writ of mandamus is DENIED. Further, this Court=s order of March 13, 2002, staying the proceedings in the underlying cause, is VACATED.

ROGELIO VALDEZ

Chief Justice

Justice Dorsey dissenting.

Do not publish.

Tex. R. App. P. 47.3

Opinion delivered and filed

this the 27th day of June, 2002.

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NUMBER 13-02-149-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

  IN RE: C&H NEWS COMPANY

On Petition for Writ of Mandamus

DISSENTING OPINION

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Dissenting Opinion by Justice Dorsey

The arbitration agreement is unambiguous and clearly requires the parties to arbitrate their dispute. The majority errs in assuming that by referring to the employee handbook in the one paragraph arbitration agreement, an ambiguity is introduced that requires the presentment of the handbook in order to enforce arbitration. I accordingly dissent from the majority=s denial of relator=s petition for writ of mandamus.

The agreement to arbitrate is sufficient within its four corners. There is no indication that the information contained in the handbook modifies the essential agreement between the partiesCi.e., to arbitrate any dispute that might arise between them. Rather, the information contained in the handbook appears to go to the procedures to be used when arbitration is sought.

The one-page arbitration agreement states in total:

I understand and acknowledge that as a condition of continued employment with ETD, the company and I have voluntarily promised and agreed to submit all claims or disputes between us to binding arbitration as provided in the Handbook. We agree that arbitration pursuant to this Agreement shall be the sole and exclusive remedy for resolving any such claims and disputes. I understand that by agreeing to arbitrate, neither I nor ETD is giving up any substantive rights under either state or federal law. Rather, we are only agreeing to submit any claim or dispute to an arbitral forum, rather than a judicial (court) one.

This agreement is complete on its face and unambiguously binds both parties to arbitration of all claims or disputes between them. The methods, procedures, and rules to be applied are found in another source, the Handbook, that was not submitted to the court below in the motion to compel arbitration. I do not find its absence from the record critical to the parties= right to enforce their contract to arbitrate. Accordingly, I would hold that the trial court has no discretion to refuse to compel arbitration.

The Federal Arbitration Act controls, and it has been interpreted by the U. S. Supreme Court in Circuit City Stores, Inc., v. Saint Claire Adams, 532 U.S. 105 (2001) to apply to contracts of employment that touch on interstate commerce. Whether one agrees with that decision either in law or policy, and I do not, is immaterial, as that court is the final arbiter of federal law. As judges bound by oath to uphold the law of the United States and of Texas, we must honor the United States Supreme Court=s interpretation of the law.

I would grant the petition for writ of mandamus.

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Dissenting Opinion delivered and filed

this 27th day of June, 2002.

[1] Relator asserts that the Federal Arbitration Act applies to the present case. Real Parties in Interest concede that if a valid agreement to arbitrate does exist, then the Federal Arbitration Act does apply.

[2]Relator has provided this Court with the title page and page one of the handbook, but provides no other pages. Real parties in interest assert that the handbook exceeds one hundred pages. While we are unable to determine the exact length of the handbook, it is clear that only a small portion of the handbook has been included in the record.