Northpointe LTC, Ltd. v. Durant

NORTHPOINTE LTC, LTD. D/B/A GRACE CARE CENTER ATNORTHPOINTE, Appellant v. DEBBIE A. DURANT, Appellee

No. 01-22-00215-CV

Court of Appeals of Texas, First District

December 22, 2022

On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2018-44284

Panel consists of Chief Justice Radack and Justices Countiss and Rivas-Molloy.

MEMORANDUM OPINION

Veronica Rivas-Molloy Justice

This is a wrongful termination and premises liability case arising from Appellee's alleged slip and fall at her workplace. In 2018, Appellee Debbie A. Durant ("Durant") sued her former employer, Appellant Northpointe LTC, Ltd. d/b/a Grace Care Center at Northpointe ("Northpointe") for negligence, gross negligence, wrongful termination, breach of employment contract, and tortious interference with contract. Over three years later, Northpointe moved to compel arbitration. Following a hearing, the trial court denied Northpointe's motion. This appeal ensued.^[1]

In two issues, Northpointe argues the trial court abused its discretion in denying its motion to compel arbitration because (1) there is a valid arbitration agreement between Durant and Northpointe, and (2) Durant failed to satisfy her burden to prove Northpointe waived its right to arbitration.

We reverse and remand.

Background

Durant worked as a certified nurse aide at Northpointe, a nursing home facility. She alleges that in July 2016, while acting in the course and scope of her employment, she slipped and fell in a hallway where the floor "had been excessively waxed" by a member of Northpointe's staff causing her significant injuries. Durant alleges she sought medical treatment and was diagnosed with "several herniated discs in her back and torn ligament in her knee." According to Durant, Northpointe terminated her employment because her injuries prevented her from returning to work. She alleges she is "totally disabled" and receives Social Security disability payments.

Durant filed suit in July 2018 asserting several causes of action against Northpointe. She alleged that Northpointe (1) negligently failed to inspect and make its premises safe and failed to warn of the slippery floors, and was grossly negligent, (2) tortiously interfered with her contract with her employee disability insurance carrier by failing to complete a claim form, resulting in the insurer's denial of her claim for disability payments, and (3) breached its oral employment agreement with her and retaliated against her by firing her while she was still under her doctor's care for her injuries.

Northpointe filed an answer in October 2018, generally denying Durant's allegations and asserting several affirmative defenses. Northpointe did not identify or reference an arbitration agreement in its answer.

Over three years later, on January 27, 2022, Northpointe filed an Opposed Motion to Compel Arbitration ("Motion to Compel"), asserting that as part of her employment with Northpointe, Durant had entered into a "Mutual Agreement to Arbitrate" ("Agreement"). The Agreement which Northpointe attached as an exhibit to its Motion to Compel, contained the following language:

Any matter covered under this Agreement or concerning the legality or interpretation of this Agreement shall be heard and decided under the provisions and authority of the Federal Arbitration Act, 9 U.S.C. § 1 as applicable. For purposes of this Agreement, an employment-related dispute includes, but is not limited to, all disputes, including statutory and common law claims, whether under state, federal or local law, including, but not limited to, theories arising from breach of implied or express contract, implied covenant of good faith and fair dealing, constructive discharge, wrongful discharge, negligence, gross negligence, false imprisonment, fraudulent concealment, worker's compensation, retaliation, intentional infliction of emotional distress, misrepresentation, personal injury, claims arising from work-related activities, unsafe workplace, unlawful discrimination, retaliation or harassment, sexual harassment, violations of Title VII of the Civil Rights Act of 1964, as amended, Age Discrimination in Employment Act (ADEA), Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), Fair Labor Standards Act, (FLSA), whistle blowing, wrongful termination in violation of public policy, and defamation. I acknowledge that any employment dispute directly or indirectly affecting my Company shall be subject to binding arbitration, including disputes against supervisors and managers that involve my employment.

Northpointe argued that (1) the Agreement was governed by the Federal Arbitration Act ("FAA"), (2) the Agreement was enforceable based on principles of contract law, and (3) Durant's claims fell within the scope of the Agreement.

Three weeks after filing its Motion to Compel, on February 16, 2022, Northpointe filed a "Submission of Its Business Records Declaration to Support Its Motion to Compel Arbitration" ("Submission") attaching the Agreement and a business records declaration from its custodian of records, Harold Hadley ("Hadley"), authenticating the Agreement. Hadley averred that the Agreement attached to his declaration was "the original or [an] exact duplicate[] of the original." Northpointe asserted in its Submission that by filing Hadley's declaration, the Agreement was self-authenticated as a business record under Texas Rule of Evidence 902.

Durant filed a response to the Motion to Compel. She did not argue that Northpointe had waived its right to arbitration. Instead, Durant argued that because Northpointe had failed to present the Agreement to Durant before moving to compel arbitration, Durant was "naturally . . . very concerned relative to the authenticity of the purported document." Durant argued that she needed "to see the original to determine if in fact her lawful signature [was] properly affixed thereto" or if the Agreement's "existence [was] the result of some surreptitious conduct by the Defendant ...." because she had only seen a photostatic copy of the document and "[c]opies are easy to manipulate."^[2] Durant argued she "did not recognize the purported agreement" and that she had a "good-faith" belief she had not actually signed the Agreement. She explained she wanted to inspect the original Agreement to determine its authenticity. Durant did not submit evidence in support of her response. Nor did she object to Northpointe's filed Submission or the attached Hadley declaration authenticating the Agreement.

The trial court held a hearing on Northpointe's Motion to Compel on February 16, 2022. During the hearing, the trial court asked Northpointe to explain why it had waited over three years to file its Motion to Compel. Northpointe explained that the case had been stagnant since early 2019 "as far as activity from both parties," and that it had gone into "quasi-abatement" in July 2019, when Durant's counsel had, for medical reasons, asked for several continuances.^[3] Northpointe explained that it had not "really . . . started looking at records, asking [] clients for records" until October 2021, and that it had just recently identified the Agreement. Northpointe explained that Durant had not served discovery.^[4]

In response, Durant's counsel argued that her main concern was that it had been "nearly four years" since inception of the lawsuit and her client had asked whether the Agreement was "a real document." While she conceded she had experienced "health concerns," Durant's counsel argued that had she "known that arbitration was mandatory . . . [she] wouldn't have wasted all this time and money in litigation." Durant's counsel did not explain what costs she had incurred or elaborate further on her statement. Focusing instead on the authenticity of the Agreement, she noted that Durant had yet to see the original of the Agreement, and that Durant was concerned the copy of the Agreement "could be a forgery." Durant's counsel argued she remained concerned with "the authenticity of the document." She stated:

We don't believe that after four years [Durant] should lose her constitutional right to a jury trial and be forced in front of someone who can make a decision that is not appealable, that she'd be stuck with. And that's our only concern, that it is quite suspicious that at the 11th hour, there's a document that takes away her constitutional right to a trial[.]

Durant's counsel stated her client could not recall the Agreement. She admitted the signature looked like Durant's signature, but she argued it could be a "cut and paste." Durant did not submit testimony or evidence in support of her allegations.

Northpointe responded that there was no evidence "beside Plaintiffs Counsel's argument that this [Agreement] is not authentic." Northpointe explained that "[pursuant to the Rules of Evidence our Arbitration Agreement self-authenticates because it's accompanied with the business declaration." Durant did not respond to this argument. Nor did she object to Hadley's declaration or seek a ruling from the trial court on her authenticity objections.

At the conclusion of the hearing, the trial court judge stated that "[b]ased upon what I have heard today, I am not ordering arbitration in this matter." Subsequently, on March 4, 2022, the trial court entered a written order denying Northpointe's Motion to Compel. The trial court did not make evidentiary findings or state the grounds upon which it denied the motion. This appeal followed.

Discussion

Northpointe raises two issues on appeal. In its first issue, Northpointe argues the trial court abused its discretion in denying its Motion to Compel because the Agreement is enforceable and "Durant's speculation that she may not...