LEE GABRIEL, JUSTICE.
In this interlocutory appeal, appellant Brand FX, LLC appeals from the trial court's order denying its motion to compel arbitration and later motion to reconsider. We reverse the trial court's order and remand for entry of an order compelling arbitration.
Appellant Brand FX, LLC is "a Delaware limited liability company" that is publicly traded. Brand FX designs, produces, markets, and sells utility truck bodies and touts revenues of $75,000,000. On October 4, 2013, Brand FX hired appellee Curtis Rhine as its chief financial officer. On November 6, 2013, Rhine signed an employment contract with Brand FX, which set out Brand FX's performance expectations, provided for severance pay if Rhine was fired "for any reason other than [c]ause," and mandated that any employment disputes would be subject to arbitration. The arbitration clause provided:
On November 27, 2013, Rhine entered into a separate subscription agreement with Brand FX under which Rhine was able to buy publicly-traded Brand FX stock and acquire a 1% interest in Brand FX.
On February 13, 2014, Brand FX's chief executive officer and Rhine's immediate supervisor, Art De St. Aubin, informed Rhine by letter of "concerns with respect to [Rhine's] employment," delineated several instances of "willful misconduct," and offered Rhine "an opportunity to cure" (the notice letter). De St. Aubin warned Rhine that if he failed to improve within thirty days, he would be fired for cause as provided in the employment contract. On March 17, 2014, Brand FX fired Rhine for cause.
Rhine filed suit against Brand FX, alleging that Brand FX (1) committed "statutory libel per se" by asserting in the notice letter that Rhine committed willful misconduct and (2) breached the employment contract by failing to provide a cure period in good faith, falsely asserting his termination was for cause, and failing to give him severance pay. After Brand FX failed to timely answer, Rhine moved for default judgment as to Brand FX's liability. See Tex. R. Civ. P. 239. The trial court granted the motion for default judgment and set a hearing for July 17, 2014 to hear evidence regarding Rhine's unliquidated damages. See Tex. R. Civ. P. 243. On July 15, 2014, Brand FX filed a motion to compel arbitration and also sought to have the default judgment set aside and a new trial ordered. In its motion to compel, Brand FX raised the arbitration provision in the employment contract, asserted that Rhine's claims fell within the scope of the agreement, and sought arbitration "to the American Arbitration Association consistent with the terms of [the arbitration] agreement." The trial court set a nonevidentiary hearing on Brand FX's motions for July 28, 2014.
Rhine filed a response to Brand FX's motion to compel on July 25, 2014, three days before the hearing. Rhine asserted that the arbitration clause was unenforceable because Brand FX waived its right to arbitrate and because the agreement was substantively unconscionable. Although Rhine served the response on Brand FX by certified mail, Brand FX did not receive the response until after the hearing and the trial court's ruling.
At the July 28 hearing, Rhine asserted for the first time that the arbitration clause was governed by the Texas Arbitration Act (the TAA) and not the Federal Arbitration Act (the FAA). The distinction was important because under the TAA, a personal-injury claim may not be subject to an arbitration agreement unless the party's attorney signs the arbitration agreement. See Tex. Civ. Prac. & Rem. Code Ann. § 171.002 (West 2011). Rhine also argued that the agreement was unconscionable and that Brand FX had waived arbitration. Brand FX asserted that the agreement was governed by the FAA because of its activities involving interstate commerce and that it had not waived its right to arbitrate. At the hearing, the trial court denied the motion to compel but set aside the default judgment.
On August 5, 2014, Brand FX filed a motion to reconsider the denial to allow the trial court to "address [Rhine's] arguments" raised at the hearing and included in Rhine's response, which Brand FX received after the hearing and the trial court's ruling. Brand FX attached De St. Aubin's affidavit, which expounded upon
At the hearing, Brand FX expounded on its arguments that the FAA applied, and Rhine asserted that no new evidence on the issue could be considered. Brand FX argued that its motion to reconsider was necessary because it was "unaware that [Rhine] was going to argue that the [TAA] applied." Brand FX again raised its argument that the arbitration agreement was enforceable and that Rhine's claims fell within its scope. On August 15, 2014, the trial court denied Brand FX's motion to reconsider but did not rule on Rhine's motion to strike. On August 18, 2014, Brand FX filed a notice of appeal from the order denying its motion to compel and from the order denying its motion to reconsider. In a sole issue, Brand FX asserts that the trial court abused its discretion by failing to compel arbitration.
Rhine asserts that we may not consider the evidence Brand FX submitted with its motion to reconsider to support its argument that the FAA applied. Indeed, Rhine has filed a motion to strike "any untimely evidence" from the clerk's record. Rhine bases his argument on the fact that an interlocutory appeal from a motion to reconsider the denial of a motion to compel is not statutorily authorized. Thus, Rhine posits that any filings relating to the motion to reconsider are not properly part of this appeal, which is only authorized as to the denial of the motion to compel.
We conclude that striking properly filed trial court documents from the clerk's record would be inappropriate. Any document that was filed in the trial court is subject to designation in the clerk's record. See generally Tex. R. App. P. 34.5. But our scope of review is not determined by a document's inclusion in the clerk's record. See In re C.A.K., 155 S.W.3d 554, 559 (Tex.App.-San Antonio 2004, pet. denied) (refusing to strike items from clerk's record and noting "inclusion of a document in the clerk's record does not necessarily mean it is relevant to the merits of the appeal"); Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 726 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (recognizing filing of supplemental clerk's record does not compel consideration of its contents).
But we are still left with the question of whether the evidence Rhine submitted to the trial court in support of its motion to reconsider should be considered in our review of the trial court's denial of arbitration.
We conclude that we may not consider any new evidence submitted in support of Brand FX's motion to reconsider. Although we have jurisdiction over this appeal because Brand FX filed its notice of appeal within twenty days after the trial court denied its motion to compel, we may not review the denial of the motion to reconsider. Our statutory authorization does not extend to such orders under either the FAA or the TAA. See 9 U.S.C.A. § 16; Tex. Civ. Prac. & Rem. Code Ann. §§ 51.016, 171.098. In its motion to reconsider, Brand FX requested the same relief and relied on the same arbitration agreement that it had included in its motion to compel. See Nazareth Hall, 374 S.W.3d at 594 (concluding interlocutory appeal from denial of motion to reconsider not authorized under the FAA because motion to reconsider based on same arbitration agreement which was subject of motion to compel); cf. Lucchese, Inc. v. Solano, 388 S.W.3d 343, 348-49 (Tex.App.-El Paso 2012, no pet.) (holding interlocutory appeal from amended motion to compel authorized under the FAA because amended motion to compel was based on separate and different arbitration agreement than agreement relied on in original motion to compel; thus, amended motion was not a disguised motion to reconsider). Further, the arguments Brand FX raised to the trial court at the hearing on its motion to compel were again included in its motion to reconsider. Therefore, because an interlocutory
Brand FX heavily relies on a mandamus opinion from the Texas Supreme Court in which the supreme court considered evidence submitted in support of a motion to reconsider the denial of a motion to compel and concluded that the FAA applied to an arbitration agreement. In re Nexion Health at Humble, Inc., 173 S.W.3d 67, 68 (Tex.2005) (orig. proceeding). In Nexion, however, the supreme court merely determined that Nexion did not waive its right to arbitration under the FAA merely because it raised the application of the FAA for the first time in its motion to reconsider. Id. at 68-69. The Nexion court was not faced with statutory authorization to review the denial of a motion to reconsider the ruling on a motion to compel arbitration and whether that statutory authorization extended to a review of a denial of a motion to reconsider. Indeed, interlocutory appeals from the denial of a motion to compel were not authorized until 2009. See In re Santander Consumer USA, Inc., 445 S.W.3d 216, 218 (Tex.App.-Houston [1st Dist.] 2013, orig. proceeding). Thus, Nexion is inapplicable to the procedural posture of this appeal.
Brand FX argues that the FAA applied to the trial court's determination of the enforceability of the arbitration agreement. Rhine contends that because Brand FX did not meet its burden to prove application of the FAA, the TAA applies. As we stated before, this distinction is important because it determines which claims are subject to the arbitration agreement. See Tex. Civ. Prac. & Rem. Code Ann. § 171.002.
The FAA applies to any contract that contains a written agreement to arbitrate, covers a dispute at issue, and involves interstate commerce. See 9 U.S.C.A. § 2; Tex. Echo Land & Cattle, LLP v. Gen. Steel Domestic Sales, LLC, No. 02-12-00372-CV, 2013 WL 3064513, at *1 (Tex.App.-Fort Worth June 20, 2013, no pet.) (mem. op.). Rhine argues that the TAA applies to the enforceability of the arbitration agreement because Brand FX failed to carry its burden to show that the contract involved interstate commerce. Because the arbitration agreement at issue did not explicitly state that the FAA or the TAA applies, Brand FX bore the burden to show that the FAA governed the arbitration agreement. See IKON Office Solutions, Inc. v. Eifert, 2 S.W.3d 688, 696 (Tex.App.-Houston [14th Dist.] 1999, no pet. & orig. proceeding). This burden is not onerous and is satisfied with evidence that the contract in fact has some link to interstate commerce. See Wee Tots Pediatrics, P.A. v. Morohunfola, 268 S.W.3d 784, 789-90 (Tex.App.-Fort Worth 2008, no pet. & orig. proceeding); Palm Harbor Homes, Inc. v. McCoy, 944 S.W.2d 716, 719-20 (Tex.App.-Fort Worth 1997, orig. proceeding). "Commerce under the [FAA] is broadly construed and the amount of commerce considered in the contract need not be substantial." In re Chevron U.S.A., Inc., 419 S.W.3d 329, 336 (Tex.App.-El Paso 2010, orig. proceeding [mand. denied]).
In the employment context, the "relationship between an employer
We conclude that these facts established as a matter of law that the parties' contract affected or involved interstate commerce; thus, the arbitration agreement was governed by the FAA.
We review the denial of a motion to compel arbitration for an abuse of discretion. Garcia v. Huerta, 340 S.W.3d 864, 869 (Tex.App.-San Antonio 2011, pet. denied). See generally 6 Roy W. McDonald & Elaine Carlson, Texas Civil Practice § 44:19[a] (2d ed. rev. 2014) (discussing appellate standard of review regarding arbitration issues). In this review, we defer to a trial court's factual findings if they are supported by the evidence but accord no deference to a trial court's resolution of questions of law. Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex.2008), cert. denied, 555 U.S. 1103, 129 S.Ct. 952, 173 L.Ed.2d 116 (2009).
Whether there is a valid and enforceable arbitration agreement is a legal question subject to de novo review. Id.; Garcia, 340 S.W.3d at 869. Once the party seeking to compel arbitration proves that a valid arbitration agreement exists, a
Rhine does not assert that he and Brand FX did not enter into an arbitration agreement or that his claims do not fall within the scope of the arbitration agreement under the FAA. Rhine contends that the arbitration agreement is unenforceable because Brand FX waived its right to seek arbitration and the agreement itself was substantively unconscionable.
Rhine argues that Brand FX waived the right to compel arbitration by substantially invoking the judicial process. Rhine asserts that by moving for a new trial and by failing to move for arbitration before its liability was established, Brand FX substantially invoked the judicial process to Rhine's detriment and, thus, waived its right to arbitration. A party waives an arbitration provision when it substantially invokes the judicial process to the other party's detriment. In re Bank One, N.A., 216 S.W.3d 825, 827 (Tex. 2007) (orig. proceeding). "[T]here is a strong presumption against waiver," and even if present, it must be intentional. EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 89 (Tex.1996) (writ of error & orig. proceeding). The Texas Supreme Court has explicitly held that a party does not substantially invoke the judicial process by moving to set aside a default judgment and requesting a new trial. Bank One, 216 S.W.3d at 827; see also Paul Jacobs, P.C. v. Encore Bank, N.A., No. 01-12-00699-CV, 2013 WL 3467197, at *4 (Tex.App.-Houston [1st Dist.] July 9, 2013, no pet.) (mem. op.) (collecting cases regarding what actions are not considered substantial invocation). We can hold no differently here and therefore conclude that Brand FX did not substantially invoke the judicial process such that it waived its right to compel arbitration. Rhine failed to meet his burden to establish waiver.
Rhine next argues that the arbitration agreement was substantively unconscionable because it potentially would shift the costs of the arbitration to Rhine if he lost, New York is not an appropriate forum, and the arbitrator does not have the ability to modify the agreement. As we previously stated, unconscionability is a
Rhine first contends that the cost-shifting provision renders the agreement unconscionable. Although excessive costs of arbitration may in certain circumstances render an arbitration agreement substantively unconscionable, the potential for shifting costs, standing alone, does not render an arbitration agreement unconscionable. FirstMerit Bank, 52 S.W.3d at 757; Lawson v. Archer, 267 S.W.3d 376, 384 (Tex.App.-Houston [14th Dist.] 2008, no pet. & orig. proceeding); In re Weeks Marine, Inc., 242 S.W.3d 849, 859-60 (Tex. App.-Houston [14th Dist.] 2007, orig. proceeding [mand. denied]). There is no evidence in the record to support the amount of potential costs or Rhine's inability to pay those potential costs should he lose. Rhine failed to establish that the cost-shifting provision rendered the agreement unconscionable. See Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92, 121 S.Ct. 513, 522, 148 L.Ed.2d 373 (2000); Pilot Travel Ctrs., LLC v. McCray, 416 S.W.3d 168, 181-82 (Tex.App.-Dallas 2013, no pet.); G.T. Leach Builders, L.L.C. v. TCMS, Inc., No. 13-11-310-CV, 2012 WL 506568, at *5-6 (Tex.App.-Corpus Christi Feb. 16, 2012, no pet.) (mem. op.); cf. Olshan Found., 180 S.W.3d at 215-16 (holding evidence of amount of AAA's fees combined with plaintiff's testimony that he could not pay the fees established arbitration agreement was unconscionable).
As part of his unconscionability argument based on cost shifting, Rhine asserts that the applicable arbitration rules — the rules of the AAA — prohibit the shifting of fees onto the losing party. As pointed out by Brand FX, the AAA rule relied on by Rhine solely addresses arbitrator expenses and does not expressly prohibit other cost shifting between the parties. Further, Rhine's failure to submit any evidence supporting his argument that the cost shifting would be unfair or unreasonably one-sided is fatal to his unconscionability argument. See Whataburger, 446 S.W.3d at 912-13 (holding no evidence admitted to show AAA fees and costs specifically applicable to arbitration; thus, trial court erred by concluding agreement unconscionable); Shamrock Foods Co. v. Munn & Assocs., Ltd., 392 S.W.3d 839, 848-50 (Tex.App.-Texarkana 2013, no pet.) (holding trial court erred by concluding agreement was substantively unconscionable because no evidence showed costs of arbitration would be prohibitively expensive). See generally 7 Tex. Jur. 3d Arbitration & Award § 26 (2013) (discussing considerations courts use to determine if agreement unconscionable based on excessive cost and noting employee must present supporting evidence).
Rhine next argues that the choice of forum in the agreement — New York — renders the agreement unconscionable because New York is not an adequate and accessible substitute to litigation. His argument solely rests on the increased expenses involved if all parties and witnesses were required to travel to New York to arbitrate the dispute. Again, it was Rhine's burden to prove the likelihood of incurring such costs and to provide
In his final argument, Rhine asserts that the agreement is unconscionable because the arbitrator does not have the discretion to amend or modify the agreement. We can find no case law supporting Rhine's assertion that a limitation on the authority of the arbitrator, which does not preclude the arbitrator from interpreting the parties' agreement and applying it to the facts of the dispute, renders an arbitration agreement unconscionable. Although Rhine cites Poly-America in support of his assertion, that case merely provided that because the contract at issue allowed the arbitrator to modify unconscionable terms, the cost-splitting provision could not be found unconscionable. Poly-Am., 262 S.W.3d at 357. We do not read Poly-America to require a conclusion that all agreements not giving the arbitrator discretion to modify the agreement are unconscionable as a matter of law. Further, this argument is predicated on Rhine's assertion that the cost provisions are unconscionable, rendering the lack of arbitrator discretion to modify the cost provisions likewise unconscionable. We already have concluded that Rhine failed to carry his burden to show that the cost provisions were unconscionable; therefore, his lack-of-discretion assertion fails as well.
Although we did not consider any evidence submitted in support of Brand FX's motion to reconsider, we conclude that Brand FX showed that its employment contract with Rhine affected interstate commerce such that the FAA applies to the arbitration agreement. Brand FX met its burden to show the existence of a valid arbitration agreement between the parties; however, Rhine failed to meet his burden to prove his defenses against enforcing the otherwise valid arbitration provision. See FirstMerit Bank, 52 S.W.3d at 756. Thus, the trial court clearly abused its discretion by failing to compel arbitration. See Odyssey Healthcare, 310 S.W.3d at 422. We sustain Brand FX's issue on appeal, reverse the trial court's order denying Brand FX's motion to compel arbitration, and remand to the trial court for entry of an order compelling the parties' dispute to arbitration pursuant to the parties' arbitration agreement. See Tex. R. App. P. 43.2(d), 43.3(a); IHS Acquisition No. 171 v. Beatty-Ortiz, 387 S.W.3d 799, 810 (Tex. App.-El Paso 2012, no pet.).
