Wednesday, July 15, 2009

No Interlocutory Appeal from Order Compelling Arbitration

Houston Court of Appeals finds that attempted appeal from order sending the parties to arbitration must be dismissed regardless of whether the arbitration is governed by the Texas Arbitration Act (TAA) or the Federal Arbitration Act (FAA). Neither act authorizes immediate interlocutory review of a trial court's order granting a motion to compel arbitration. Bradt v. MBNA America, N.A. (Tex. App. – Houston [14th Dist.] 2009)(per curiam) MEMORANDUM OPINION This is an attempted appeal from an order, signed November 5, 2008, compelling arbitration. We dismiss this appeal for lack of jurisdiction. By statute, a party may appeal an order denying arbitration under the Texas Arbitration Act, but the statute does not provide for an appeal of an order compelling arbitration. See Tex. Civ. Prac. & Rem. Code Ann. §171.098(a) (Vernon 2005). An interlocutory order compelling arbitration under the Federal Arbitration Act is also not appealable. See In re Poly-America, L.P., 262 S.W.3d 337, 345 (Tex. 2008)(citing to 9 U.S.C. § 16(b)(1)). Thus, whether the arbitration provision in this case implicates the Texas or Federal Arbitration Act, the order signed November 5, 2008, is not appealable. See Gathe v. Cigna Healthplan of Texas, Inc., 879 S.W.2d 360, 362 (Tex. App.- Houston [14th Dist.] 1994, writ denied). On January 21, 2009, notification was transmitted to the parties of this court's intention to dismiss the appeal for want of jurisdiction unless appellants filed a response demonstrating grounds for continuing the appeal on or before February 2, 2009. See Tex. R. App. P. 42.3(a). Appellants filed no response. Accordingly, the appeal is ordered dismissed. PER CURIAM Bradt v. MBNA America, N.A. (Tex. App. – Houston [14th Dist.] Mar. 12, 2009)(per curiam dimissal) (trial court order compelling arbitration not subject to prompt appellate review by way of interlocutory appeal) APPEAL DISMISSED: Per Curiam Before Justices Brock Yates, Guzman and Sullivan 14-08-01172-CV L.T. Bradt and Joseph Rothstein v. MBNA America, N.A. Appeal from 240th District Court of Fort Bend County Trial Court Judge: Thomas Ralph Culver RELATED LINKS: Arbitration-Related Decisions from the Houston Courts of Appeals | Does TAA or FAA apply, or do both? | Arbitration Mandamus |

Tuesday, July 14, 2009

Presumption of Receipt substitutes for proof of delivery of employer's policy document containing arbitration clause

An arbitration agreement does not have to be signed to become effective as conduct after receipt, such as continued employment, may be sufficient to signify acceptance. But what if there is no direct proof of delivery? In this case, the Houston court of appeals panel upholds the enforceability of the employer's dispute resolution plan including arbitration based on the presumption of receipt that was not properly rebutted by the employee. In Re Halliburton (Tex.App.- Houston [1st Dist.] Jul. 2, 2009) (orig. proceeding) FROM THE OPINION: Motion to Compel In July 2008, Halliburton moved to compel arbitration and to dismiss or stay the trial court proceedings. Halliburton argued that O’Beirne accepted the terms and conditions of the DRP twice in writing and by his continued employment with Halliburton after Halliburton mailed a copy of the DRP to its employees in 2001. Halliburton also argued that O’Beirne’s claims fall within the scope of the arbitration agreement because the DRP is broadly written to include “all legal and equitable claims” including “employee benefits or incidents of employment with the company.” Halliburton argued that O’Beirne’s claims for unpaid bonuses and benefits were squarely within the scope of the arbitration agreement. * * * [W]e begin with the most recent version of Halliburton’s DRP relevant to this case, the 2001 DRP, which Halliburton asserts it mailed to O’Beirne. Presumption of Receipt A presumption of receipt arises when a party presents evidence that a document was placed in the United States mail with the proper address and sufficient postage. Southland Life Ins. Co. v. Greenwade, 159 S.W.2d 854, 857 (Tex. 1942); Texaco, Inc. v. Phan, 137 S.W.3d 763, 767 (Tex. App.— Houston [1st Dist.] 2004, no pet.). “The matters of proper addressing, stamping, and mailing may be proved by circumstantial evidence, such as the customary mailing routine of the sender’s business.” Phan, 137 S.W.3d at 767 (citing Cooper v. Hall, 489 S.W.2d 409, 415 (Tex. Civ. App.—Amarillo 1972, writ ref’d n.r.e.)). Testimony that the notice was not received is enough to rebut this presumption, thus creating a fact issue to be resolved by the trial court. Greenwade, 159 S.W.2d at 857–58; Phan, 137 S.W.3d at 767. The presumption of receipt is overcome only when the evidence supporting the contrary inference is conclusive, or so clear, positive, and disinterested that it would be unreasonable not to consider it conclusive. Phan, 137 S.W.3d at 767–68. Here, Halliburton provided uncontroverted evidence that copies of the 2001 DRP materials were sent to O’Beirne in a properly addressed packet, with Halliburton’s return address. In addition, Halliburton provided evidence that they kept track of packets returned to Halliburton by the Post Office as undeliverable and that O’Beirne’s packet was not returned. These uncontroverted facts are circumstantial evidence that proper postage was affixed to O’Beirne’s packet, supporting the presumption of receipt. O’Beirne presented no evidence to the trial court that he did not receive the DRP materials mailed to him in 2001. His affidavit “disputes” that he received the plan materials that Halliburton asserted it provided to him in 2000 when he was hired, but it does not address the materials mailed in 2001. Rather, O’Beirne argues that Halliburton did not establish the presumption of receipt because it did not provide direct evidence of proper postage. Because this can be—and has been—proven by circumstantial evidence, we hold that Halliburton established the presumption that O’Beirne received the 2001 DRP materials. Agreement to Arbitrate The 2001 DRP provided, “Employment or continued employment after the Effective Date of this Plan constitutes consent by both the Employee and the Company to be bound by this Plan, both during the employment and after termination of employment.” The 2001 DRP defines the “effective date” as June 15, 1998, as amended as of August 15, 1999. O’Beirne does not dispute that he was employed by Halliburton after the effective date of the plan. Therefore, O’Beirne accepted the agreement by performance, i.e., his employment. Accordingly, we hold that a valid agreement to arbitrate exists between Halliburton and O’Beirne. Scope of the Agreement We next consider whether O’Beirne’s claims fall within the scope of the agreement to arbitrate. The 2001 DRP aterials state, “All Disputes not otherwise settled by the Parties shall be finally and conclusively resolved under this Plan and the Rules.” “Dispute” is defined as: “all legal and equitable claims, demands, and controversies, of whatever nature or kind, whether in contract, tort, under statute or regulation, or some other law . . . including , but not limited to, any matters with respect to . . . (2) the employment . . . of an Employee, including the terms, conditions, or termination of such employment . . . [or] (3) employee benefits or incidents of employment with the Company. . . .” O’Beirne has sued Halliburton for bonuses and other monies he claims were due to him upon his retirement from Halliburton. Because his claims deal with his employment, termination of employment, and benefits of such employment, we hold that O’Beirne’s claims are within the scope of the arbitration agreement. Conclusion Because O’Beirne’s claims are within the scope of a valid arbitration agreement, we hold that the trial court abused its discretion by denying Halliburton’s motion to compel arbitration. See In re Tenet Healthcare, Ltd., 84 S.W.3d at 765 (“A court has no discretion and must compel arbitration if the answer to both questions is affirmative.”) We conditionally grant relator’s petition for writ of mandamus, and we direct the trial court to vacate its February 9, 2009 order and grant relator’s motion to compel arbitration. We are confident the trial court will promptly comply, and our writ will issue only if it does not. We vacate the temporary stay granted in this case on March 10, 2009. In re Halliburton Co. (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)(Sharp) (arbitration mandamus) (FAA: trial court should have granted motion to compel arbitration in employment dispute) GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Sharp Before Chief Justice Radack, Justices Taft and Sharp 01-09-00150-CV In re Halliburton Company Appeal from 133rd District Court of Harris County Trial Court Judge: Jaclanel M. McFarland