Date: 09-17-2014

Case Style: United Rentals, Inc. and United Rentals Northwest, Inc. v. Thomas T. Smith

Case Number: 08-13-00167-CV

Judge: Yvonne T. Rodriguez

Court: Texas Court of Appeals, Eighth District on appeal from the 448th District Court, El Paso County

Plaintiff's Attorney:

Defendant's Attorney:

Description: Appellants seek reversal of the trial court’s order denying their motion to compel
arbitration against plaintiff and former employee Thomas Smith. We affirm.

BACKGROUND

Smith alleges that Appellant unlawfully terminated him on the basis of age during a
series of workforce reduction layoffs that targeted only older employees. Smith further alleges
that he refused to sign an agreement to receive severance pay in exchange for a release of any
age discrimination claims and instead filed suit. Appellants moved to compel arbitration,
maintaining that a clause contained in Smith’s original employment agreement governed the
terms of all employer-employee dispute resolutions.

In support of their motion, Appellants attached a purported copy of the original

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employment agreement signed by Smith to their motion as Exhibit A. The agreement states that
its terms and interpretation will be subject to Connecticut law. Section 5(d) governs “Arbitration
of Certain Claims by Employees.” Section 5(d)(i) states as follows:

Except for matters referred to in Section 5(a), any and all claims by
Employee relating to any matter arising during or after the employment of
the Employee by Company or in connection with the cessation of said
employment shall be resolved exclusively by arbitration conducted by one
arbitrator in accordance with the National Rules for the Resolution of
Employment Disputes established by the American Arbitration
Association (AAA). The Company will provide a copy of these Rules to
Employee on request. The decision of the arbitrator will be final and
binding on both parties.

Section 5(d)(ii) states as follows:

The claims and disputes to be arbitrated under this Section 5(d)
(‘Arbitrable Claims’) include without limitation, disputes or claims arising
under (A) federal, state, and local statutory or common law, such as the
Age Discrimination in Employment Act, Title VII of the Civil Rights Act
of 1964, as amended, including the amendments of the Civil Rights Act of
1991, the Americans with Disabilities Act, (B) the law of contract and (C)
the law of tort.

The authenticity of the purported employment agreement submitted into evidence is in
dispute. In his written response and again at a hearing on the motion to compel, Smith’s counsel
objected to the authenticity of Exhibit A, telling the court that Appellants’ prior counsel had
stated that Appellants were unable to find the original version of the agreement, that all the
copies they had on file were illegible, and that the copy Appellants submitted to the court had
been digitally enhanced for readability. When the trial court asked for Appellants’ response,
Appellants’ new counsel stated that he had only been recently appointed and could not say for
sure whether the original was available.

The only other evidence filed in support of Appellants’ motion to arbitrate was a
declaration by former human resources director Eunji Yoo. The declaration is not notarized, but

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it does contain an unwitnessed jurat signed by Yoo attesting that he made the statements
contained therein “under penalty of perjury under the laws of the United States . . . .” Yoo states
that he made his declaration in support of Appellants’ motion to compel, and that at the time
Smith was hired, Yoo was in charge of, inter alia, facilitating employment agreements and
handling the application process. Yoo further stated that based on his own personal knowledge
and a review of company records, Appellants extended Smith an offer letter and Employment
Agreement on or about “February 9, 2012” [sic]. Smith signed the agreement and returned it on
or about “February 12, 2010[,]” and Yoo countersigned the agreement the same day. Yoo also
quoted verbatim from Sections 5(d)(i) and 5(d)(ii) of the Employment Agreement, which
governed the terms of arbitration. However, Yoo never references Exhibit A in his declaration,
nor does he state it is a true and accurate representation of the agreement or otherwise vouch for
its authenticity.

After taking the matter under advisement, the trial court ruled in favor of Smith and
denied the motion to compel arbitration. The trial court did not state upon which grounds its
decision rested, only that its judgment was based on the arguments of counsel and a review of the
pleadings and evidence. United Rentals appealed.

ANALYSIS

COMPELLING ARBITRATION

In their sole issue on appeal, Appellants maintain that the trial court erred in failing to
compel arbitration because they established both the existence of an agreement to arbitrate under
both Texas and Connecticut law, and that Appellee’s claims against them fell within the scope of
that agreement. Smith does not dispute that, to the extent the purported Employment Agreement
is legible, the claim would fall within the scope of the Agreement’s arbitration clause. However,

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Smith contends that Appellants failed to carry their evidentiary burden in establishing an
arbitration agreement’s existence because the purported Employment Agreement submitted as
Exhibit A could not be authenticated on the record presented. Alternatively, Smith avers that the
arbitration provision is invalid for lack of consideration under both Connecticut and Texas law.
Because we find that Appellants failed to properly authenticate the copy of the arbitration
agreement, and because Yoo’s Declaration standing alone was insufficient to establish the full
terms of arbitration, Appellants failed to carry their evidentiary burden, and we uphold the trial
court’s ruling on that ground.

Standard of Review and Applicable Law

We review the question of whether a valid arbitration exists de novo. In re ReadyOne
Industries, Inc., 294 S.W.3d 764, 768 (Tex.App.--El Paso 2009, orig. proceeding)(existence of
valid arbitration agreement is a question of law). The burden of establishing an arbitration
agreement’s existence is evidentiary and runs with the party seeking to compel arbitration.
Mohamed v. Auto Nation USA Corp., 89 S.W.3d 830, 836 (Tex.App.--Houston [1st Dist.] 2002,
orig. proceeding). A strong presumption in favor of arbitration attaches “only after the party
seeking to compel arbitration proves that a valid arbitration agreement exists.” J.M. Davidson,
Inc., v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). “No party is under a duty to arbitrate unless
by clear language he has previously agreed to do so; and it must clearly appear that the intention
of the parties was to submit their dispute to an arbitration panel and to be bound by the panel’s
decision.” Webb v. Investacorp, 89 F.3d 252, 259 (5th Cir. 1996), quoting Massey v. Galvan,
822 S.W.2d 309, 316 (Tex.App.--Houston [14th Dist.] 1992, writ denied).

“[A]n employer attempting to enforce an arbitration agreement must show the agreement
meets all requisite contract elements.” Webster, 128 S.W.3d at 228. “[O]rdinary principles of

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state contract law determine whether there is a valid agreement to arbitrate.” Inland Sea, Inc. v.
Castro, 420 S.W.3d 55, 58 (Tex.App.--El Paso 2012, pet. denied). The elements of a valid
contract, including contracts to arbitrate, are (1) an offer, (2) an acceptance, (3) a meeting of the
minds, (4) each party’s consent to the terms, and (5) execution and delivery of the contract with
the intent that it be mutual and binding. Paragon Indus. Applications, Inc. v. Stan Excavating,
L.L.C., 432 S.W.3d 542, 547 (Tex.App.--Texarkana 2014, no pet.). “[T]he trial court may
summarily decide whether to compel arbitration on the basis of affidavits, pleadings, discovery,
and stipulations.” Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992).

“However, if the material facts necessary to determine the issue are controverted, by an opposing
affidavit or otherwise admissible evidence, the trial court must conduct an evidentiary hearing to
determine the disputed material facts.” Id.

Evidentiary Proof of Arbitration Agreement Existence

In the first half of Issue One, Appellants maintain that a purported copy of the initial
employment agreement, signed by HR Director Yoo and Appellee, which was attached to Yoo’s
declaration constitutes sufficient evidence that the agreement existed. Appellee counters that
Appellant failed to provide sufficient threshold evidence establishing the existence of a valid
arbitration agreement for three reasons. First, Yoo’s declaration was not notarized and the jurat
contains formal defects, rendering it incompetent evidence. Second, Exhibit A cannot be
authenticated because Yoo does not assert the attachment is a true and correct copy. Finally,
specific statements in the declaration outlining the terms of the arbitration agreement were
inadmissible because Yoo lacked sufficient personal knowledge to support their veracity and
because they were inadmissible hearsay. We address Appellee’s defensive contentions in turn.
Unsworn Declarations and Jurats

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In general, “an unsworn declaration may be used in lieu of a written sworn declaration,
verification, certification, oath, or affidavit required by statute . . . .” TEX.CIV.PRAC.&
REM.CODE ANN. § 132.001(a)(West Supp. 2014). Such a declaration must be in writing and
must be subscribed as true under penalty of perjury. TEX.CIV.PRAC.&REM.CODE ANN.
§ 132.001(c). A template jurat containing the declarant’s name, address, date of birth, and
perjury attestation appears at TEX.CIV.PRAC.&REM.CODE ANN. § 132.001(d). The statute
requires a jurat to appear in “substantially” the same form as the template jurat before an
unsworn declaration becomes operative. Id.

We disagree with Appellee’s contention that the Yoo Declaration’s deviations from the
statute render it inoperative and convert it into unsworn hearsay. Although the declaration jurat
fails to contain Yoo’s address and date of birth, such an omission is not fatal here. The operative
part of the jurat is the portion subjecting the declarant to the penalty of perjury. See Dominguez
v. State, No. 01-12-01148-CR, -- S.W.3d --, 2014 WL 2582975, at *6 (Tex.App.--Houston [1st
Dist.] June 10, 2014, no pet. h.)(applying rule in criminal context). Failure to include the
declarant’s birthdate or address is a formal defect having no effect on whether a false statement
would render the declarant liable for perjury. Cf. id. Appellee’s argument that the jurat is
substantively defective because the declarant subjected himself to federal perjury penalties
instead of Texas perjury penalties is also without merit. The plain language of the statute does
not specify that the declarant must state he is making the jurat under Texas law, see
TEX.CIV.PRAC.&REM.CODE ANN. § 132.001(c), and Appellee cites no case law holding
otherwise.1 As such, we find the jurat was sufficient to allow the declaration to substitute for a
notarized affidavit under the Civil Practice and Remedies Code.

1 In fact, as the Dominguez court noted, submission of a declaration in substantial compliance with the terms of the
statute would render the declarant liable for perjury under TEX.PENAL CODE ANN. § 37.02(a)(2)(West 2011). See
Dominguez, 2014 WL 2582975, at *6.

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Authentication of Employment Agreement

Appellee also complains that the Employment Agreement attached to the Motion to
Compel is unable to be authenticated, since Yoo’s declaration fails to essentially incorporate that
document by reference and explicitly state that the exhibit is a true and correct copy of the
Agreement. We agree that Exhibit A cannot be authenticated based on the record before us.
A piece of evidence’s authenticity is a prerequisite to admissibility. The authentication
requirement “is satisfied by evidence sufficient to support a finding that the matter in question is
what its proponent claims.” TEX.R.EVID. 901(a). “[T]he predicate for admissibility under rule
901 may be proven by circumstantial evidence.” Sanchez v. Tex. State Bd. Of Med. Exam’rs,
229 S.W.3d 498, 509 (Tex.App.--Austin 2007, no pet.). “A document is considered authentic if
a sponsoring witness vouches for its authenticity or if the document meets the requirements of
self-authentication” set out in TEX.R.EVID. 902. Castro v. Sebesta, 808 S.W.2d 189, 195
(Tex.App.--Houston [1st Dist.] 1991, no writ)(op. on reh’g). The testimony of a witness with
knowledge is only one of any number of ways to prove authenticity. TEX.R.EVID. 901(b)(setting
out illustrative, non-exclusive list of ways to prove authenticity).

Here, Appellants submitted Exhibit A with their Motion to Compel Arbitration,
purporting through counsel in the body of the motion that Exhibit A was a “true and correct
copy” of the Employment Agreement. However, at the evidentiary hearing, counsel for
Appellants conceded that he did not know if the original existed. Thus, the veracity of the
document as being an authentic copy of the original was beyond counsel’s personal knowledge,
and to the extent prior counsel certified the document was a true and correct copy in the motion
to compel arbitration, the statement in the motion is conclusory and lacks foundation that she had
personal knowledge of that fact.

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Also attached to their motion was Yoo’s declaration. Although Yoo states that as
Appellants’ former HR director, he and Smith signed the employment agreement containing the
arbitration clause, and although he quotes from Sections 5(d)(i) and 5(d)(ii) of the purported
Employment Agreement verbatim, Yoo never directly states or otherwise affirmatively
represents that Exhibit A that is attached to the motion is a true and correct copy of that
agreement. “Simply attaching a document to a pleading neither makes the document admissible
as evidence, dispenses with proper foundational evidentiary requirements, or relieves a litigant of
complying with other admissibility requirements.” Ceramic Tile Int’l, Inc. v. Balusek, 137
S.W.3d 722, 725 (Tex.App.--San Antonio 2004, no pet.). Since Yoo never directly vouched for
the exhibit’s authenticity, his declaration could not support an authenticity finding.
Further, although “[a] party’s signature on a written contract is strong evidence that the
party unconditionally assented to its terms[,]” In re Big 8 Food Stores, Ltd., 166 S.W.3d 869,
876 (Tex.App.--El Paso 2005, orig. proceeding)[Internal citation and quotation marks omitted],
there does not appear to be any evidence admitted at the hearing, such as an exemplar of
Appellee’s signature, that would allow the trial court to verify the exhibit and Appellee’s
signature are authentic. See TEX.R.EVID. 901(b)(2)-(3)(governing handwriting analysis).

Finally, the document does not fall into the class of self-authenticating documents set out in the
Rules of Evidence. See TEX.R.EVID. 902. As such, the trial court could properly exclude
Exhibit A and find that it was incompetent evidence of the arbitration agreement’s terms.
The trial court could have also found that Yoo’s Declaration, standing alone, was
insufficient evidence of the arbitration agreement’s existence, since it contained an incomplete
recitation of the agreement’s terms. For instance, Yoo’s Declaration does not contain the
Connecticut choice-of-law provision, nor does it make mention of the trade secret provisions

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Appellants claim provide alternative adequate consideration in the event the remainder of the
contract does not constitute adequate consideration for the arbitration agreement. See Mendivil
v. Zanios Foods, Inc., 357 S.W.3d 827, 831 (Tex.App.--El Paso 2012, no pet.)(noting that
remainder of contract may constitute adequate consideration where arbitration agreement is not a
stand-alone agreement but is contained in a larger contract).

Given that no witness could conclusively establish that the Employment Agreement in
Exhibit A was a true and correct authentic copy, and given that the only other evidence was an
incomplete recitation of the agreement’s terms contained in Yoo’s Declaration, the trial court
could have rightly found that there was insufficient evidence to establish the existence of the
arbitration agreement. Since this ground is meritorious, and since the trial court did not specify
on which ground its judgment rested, we will affirm the judgment on this ground. We decline to
address the remaining arguments raised in the briefs as unnecessary to resolution of this appeal.
See TEX.R.APP.P. 47.1.

Outcome: The judgment of the trial court is affirmed.

Plaintiff's Experts:

Defendant's Experts:

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