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Shillinglaw v. Baylor University

Court of Appeals of Texas, Fifth District, Dallas

June 21, 2018


          On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-01225

          Before Justices Bridges, Myers, and Schenck



         Colin Shillinglaw appeals the trial court's orders dismissing his claims against appellees and awarding them their attorney's fees pursuant to the Texas Citizens' Participation Act (TCPA). In his first issue, Shillinglaw contends the dismissal orders should be reversed because the case should have been sent to arbitration. In his second issue, Shillinglaw urges the Federal Arbitration Act (FAA) preempts the TCPA because, as applied here, the TCPA discriminated against arbitration. In his third issue, Shillinglaw argues the trial court erred by ordering him to pay unreasonable attorney's fees to appellees under the TCPA. We affirm the trial court's judgment. Because all issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4.


         In 2008, appellee Baylor University (Baylor) hired Shillinglaw to be its Director for Football Operations. In 2015, Baylor hired appellee Pepper Hamilton to perform an investigation of the handling of reports of sexual assault and harassment at Baylor. Pepper Hamilton's investigation included interviewing Shillinglaw. In May 2016, Pepper Hamilton presented its findings to Baylor's Board of Regents. Baylor suspended and later terminated Shillinglaw's employment.

         On January 31, 2017, Shillinglaw sued Baylor, Dr. David E. Garland as interim president of Baylor, Dr. Reagan Ramsower, [1] James Cary Gray, Ronald D. Murff, David H. Harper, Dr. Dennis R. Wiles, [2] and Pepper Hamilton, in Dallas County asserting claims of libel, slander, tortious interference with existing contract, aiding and abetting, conspiracy, ratification, and retraction. In March, appellees filed separate motions to dismiss Shillinglaw's claims pursuant to the TCPA and to recover their court costs, attorney's fees, and litigation expenses. On April 3, ten days before the hearing set on appellees' motions to dismiss, Shillinglaw moved to continue the hearing. Days later, Shillinglaw moved to non-suit his claims in the trial court, which issued an order granting his nonsuit, leaving only appellees' claims for costs, attorney's fees, and other defense expenses related to their motions to dismiss.

         On April 10, Shillinglaw filed a separate suit in McLennan County asserting similar claims against Baylor alone. Shillinglaw requested that the McLennan County court order the parties to arbitration pursuant to an arbitration agreement in his employment contract with Baylor. Meanwhile, in the Dallas County case, Shillinglaw filed a response to appellees' motions to dismiss, in which he referenced (and to which he attached) the McLennan County petition and argued the McLennan County court should be permitted to compel arbitration. He did not, however, request that the Dallas County trial court compel arbitration.

         On April 13, the Dallas County trial court conducted a hearing on appellees' motion to dismiss, at which Shillinglaw confirmed he had not filed a written request to compel arbitration. The trial court granted the motions to dismiss and dismissed Shillinglaw's claims against appellees with prejudice and set another hearing to receive evidence regarding the award of costs and reasonable attorney's fees. Before the hearing on costs and attorney's fees, Shillinglaw filed a motion to reconsider, in which he requested the trial court reconsider its orders granting the motions to dismiss, award Shillinglaw court costs and reasonable attorney's fees, and refer the case to arbitration. Following the hearing on costs and attorney's fees, the trial court denied Shillinglaw's motion to reconsider and awarded appellees attorney's fees. This appeal followed.[3]


         I. Arbitration

         A. Compelling Non-Signatories to Arbitration

         In his first issue, Shillinglaw contends the Dallas County trial court erred by failing to order the claims to arbitration. In his second issue, Shillinglaw urges the FAA preempts the TCPA because, as applied here, the TCPA discriminated against arbitration. As part of his first and second issues, Shillinglaw urges that although only Shillinglaw and Baylor are signatories to the arbitration agreement at issue, the remaining non-signatory appellees should also be compelled to arbitration.

         We begin with the foundational principle that arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute that he has not agreed so to submit. AT & T Techs., Inc. v. Commc'ns. Workers of Am., 475 U.S. 643, 648 (1986). A party seeking to compel arbitration under the FAA must establish (1) the existence of a valid, enforceable arbitration agreement and (2) that the claims at issue fall within that agreement's scope. VSR Fin. Servs., Inc. v. McLendon, 409 S.W.3d 817, 827 (Tex. App.-Dallas 2013, no pet.).

         The United States Supreme Court has repeatedly emphasized that arbitration is a matter of consent, not coercion, that the FAA does not require parties to arbitrate when they have not agreed to do so, and its purpose is to make arbitration agreements as enforceable as other contracts, but not more so. Roe v. Ladymon, 318 S.W.3d 502, 510 (Tex. App.-Dallas 2010, no pet.) (citing EEOC v. Waffle House, Inc., 534 U.S. 279, 293 (2002); Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 479 (1989); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n.12 (1967)).

         As in other contracts, non-signatories are normally not bound by arbitration agreements with others. Id. at 511. But non-signatories to a contract containing an arbitration clause may be allowed or required to arbitrate if rules of law or equity would apply the contract to them generally. Id. Accordingly, we will now examine whether any rules of law or equity would bind any of the non-signatory appellees to Shillinglaw's employment contract.

         Shillinglaw argues the non-signatory appellees were bound in their capacities as employees or agents of Baylor under the doctrine of respondeat superior. He urges that Baylor's interim president Dr. Garland and its senior vice president and CFO Dr. Ramsower had or have a "close connection to Baylor" that means that the claims against them are intertwined such that arbitration is appropriate. Shillinglaw avers the appellee members of the Baylor Board of Regents have an even closer relationship than that of employer and employee, that they are the human agents through which the university acts. Shillinglaw urges that Pepper Hamilton was acting as Baylor's agent when it carried out the acts and omissions complained of by Shillinglaw and argues the doctrine of respondeat superior should apply here to bind Pepper Hamilton.

         Under the doctrine of respondeat superior, an employer or principal may be vicariously liable for the tortious acts of any employee or agent acting within the scope of his or her employment or agency, even though the principal or employer did not itself commit a wrong. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541-42 (Tex. 2002). It is the right of control that justifies imposing liability on the employer for the actions of the employee or agent. See id. at 542. Shillinglaw, however, urges that the non-signatories are employees or agents who must be bound by the actions of their employer, rather than employers who must be bound by the actions of their agents or employees. Thus, we find his arguments regarding respondeat superior inapposite. See id. We next address his arguments regarding the non-signatory appellees as agents of signatory Baylor.

         Shillinglaw relies on an opinion from another court of appeals for the proposition that when the principal is bound under the terms of a valid arbitration clause, its agents, employees, and representatives are covered by that agreement. Amateur Athletic Union of the U.S., Inc. v. Bray, 499 S.W.3d 96, 104 (Tex. App.-San Antonio 2016, no pet.). However, the Bray decision is distinguishable because the San Antonio Court of Appeals held that the individual defendants could compel arbitration against the plaintiff where all individual parties had signed membership applications, in which each applicant agreed to be bound by an organization's policies, which included a binding arbitration provision. See id. The Bray decision does not suggest that the plaintiff could have compelled arbitration against the defendants merely because they were employed as agents of the signatory organization. C.f. id.

         Shillinglaw further cites authority applying principles of equitable estoppel to argue that his claims against the non-signatories are so factually intertwined with his claims against Baylor as to subject them to arbitration.[4] To be sure, estoppel principles may require a non-signatory to arbitrate if it seeks through its claim to obtain a direct benefit from the contract containing the arbitration clause. Ladymon, 318 S.W.3d at 520. Conversely, allowing willing non-signatories to compel arbitration with a party to the arbitration agreement simply precludes a signatory from avoiding arbitration with a party when the issues the non-signatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed. See, e.g., In re Vesta Ins. Grp., Inc., 192 S.W.3d 759, 762-63 (Tex. 2006) (per curiam) (signatory plaintiff resisted arbitration while non-signatory defendants sought to hold signatory plaintiff to agreement to arbitrate). In that situation, all parties to the requested arbitration have agreed to forego their right to a judicial forum. Reversing the situation, as Shillinglaw proposes, to require an unwilling non-signatory to arbitrate is no small matter of procedural convenience. It would carry serious constitutional implications and undermine the core consensual nature of the federal arbitration act. E.g., ...

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