Court of Appeals of Texas, Eighth District, El Paso
from the 243rd District Court of El Paso County, Texas (TC#
McClure, C.J., Rodriguez, and Hughes, JJ.
CRAWFORD McCLURE, Chief Justice.
Hurst filed an employment discrimination and retaliation suit
against Fitness Entertainment, Ltd. doing business as Planet
Fitness. The trial court heard and denied Planet's motion
to stay proceedings and compel arbitration. Planet appeals
the trial court's denial of its motion, and complains
that the trial court provided insufficient notice that an
evidentiary hearing would be conducted.
filed its motion to stay proceedings and compel arbitration
on June 15, 2015. Affixed to its motion is a document
entitled, "Employment, Non-Competition Agreement and
Arbitration Agreement." The last page of the document
bears only Hurst's printed name as "employee, "
a signature, a black box positioned over a line for a social
security number, and information consisting of an address,
telephone numbers, and emergency contact person. The last
page also bears an unsigned signature block for "Gym
Management Corp., and/or JB4 Fitness Management, Ltd., d/b/a
Planet Fitness® ('EMPLOYER')" followed by
the name and signature line for "Joseph Bencomo, "
which is unsigned, and a line for inserting a date, which is
blank. On July 7, 2015, the trial court set a hearing on the
motion for July 16, 2015.
p.m. on July 15, 2015, Hurst filed his response. He asserted
that he did not at any time during his employment acknowledge
or agree to the purported arbitration agreement, and refuted
its existence and validity. He also alleged that Planet had
failed to satisfy its burden of establishing the existence of
a valid arbitration agreement pursuant to traditional
contract principles, and objected on grounds of lack of
authenticity, hearsay, and the best evidence rule because
Planet had not produced the original document that Hurst had
support of his response, Hurst affixed his sworn affidavit in
which he attested that during the period of his employment he
did not sign an arbitration agreement. Referring to the
"Employment, Non-Competition Agreement and Arbitration
Agreement" attached to the motion to compel, Hurst
declared that although his signature appears on the last page
of the document, the pages preceding his signature are
"replacements of some other document" he signed and
that "someone attached the last page with my signature
to the purported arbitration agreement" that he had not
signed. Hurst noted that the documents he signed had a larger
heading on the first page, greater spacing between the lines,
and did not include an arbitration agreement.
hearing, Planet argued that the arbitration agreement was
subsumed within the larger employment agreement, and that
Hurst's affidavit was insufficient to show that he did
not agree to arbitrate his claims. Planet also noted that its
motion included an affidavit from another employee who swore
that the arbitration agreement is signed by all employees and
was signed by Hurst. Counsel represented to the trial court
that there is no other agreement signed by Hurst and that
Hurst had presented no evidence that the arbitration
provisions had been inserted into another document Hurst had
signed. Planet did not call any witnesses.
response, Hurst's counsel referred the trial court to
Section 171.021(b) of the Civil Practice and Remedies Code,
and noted that if the non-movant produces evidence
controverting the existence of a valid arbitration agreement,
the trial court is required to conduct an evidentiary
hearing. See Tex. Civ. Prac. & Rem. Code Ann.
§ 171.021(b)(West 2011). Counsel then announced that he
intended to call Hurst to testify. He also lodged objections
based on hearsay and the best evidence rule because Planet
had failed to present the original document.
countered that hearings to compel arbitration track those of
a motion for summary judgment. If a material fact is at
issue, the trial court may conduct an evidentiary hearing. It
then argued that this hearing was not evidentiary in nature.
Hurst had not presented evidence to support his hearsay
objection, and the affidavit was made on the personal
knowledge of the affiant. The trial court sustained the
hearsay objection and explained, "If there's an
exception, that's how you get it in." The trial
court then noted:
What I'm hearing is - he is saying, ["]We've
raised evidence contesting the admission of that
affidavit.["] You say, at that point, ["]it
warrants an evidentiary hearing.["]
this, Planet responded, "Right." Planet then argued
that Hurst had not presented evidence contesting the fact
that he had signed the arbitration agreement. The trial court
observed, "I'm assuming he's going to contest
it. You know what? Just do it."
lodged no objection in advance of Hurst's testimony.
Hurst testified that Planet had never presented an
arbitration agreement to him and that he had never signed
one. Although he acknowledged that his signature appeared on
the last page of the document, he claimed that he had signed