Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 192nd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-18-01162
Justices Whitehill, Molberg, and Reichek
L. REICHEK, JUSTICE
interlocutory appeal, Alliance Family of Companies and Justin
Magnuson appeal the trial court's order denying their
motion to compel arbitration of a suit brought against them
by Jamisha Nevarez. In a single issue, appellants generally
contend the ruling was error because (1) there is a valid
arbitration agreement, (2) appellee's claims fall within
the scope of the agreement, and (3) appellee failed to raise
an effective affirmative defense to application of the
agreement. We conclude appellee's claims fall outside the
scope of the arbitration agreement; accordingly, we affirm
the trial court's order.
Family of Companies is a diagnostic testing facility that
provides neurodiagnostic, cardiac, and sleep testing.
Magnusson is its chief executive officer. In November 2016,
appellants hired appellee as Magnusson's personal
assistant. Six months later, she signed two nondisclosure
agreements, one with AFC and the other with Magnusson. In
each of the NDAs, appellee agreed she would not
"directly, indirectly or in any manner whatsoever, use,
disseminate, disclose or publish" AFC's or
Magnusson's confidential information. Confidential
information was defined differently in each agreement.
respect to AFC, confidential information was defined as
"any and all technical and non-technical information
provided to [appellee] by AFC," and included, among
other things, "personal and/or business entity contacts
of any type whatsoever relating in any manner whatsoever to
AFC and/or to Justin Magnuson . . .." As to Magnusson,
confidential information was defined as "any and all
information provided to or discovered by [appellee] regarding
[Magnusson], and included, among other things, "personal
and/or business contacts; personal and/or business
activities; . . . business and/or personal contacts and/or
activities of any type whatsoever relating in any manner
whatsoever to [Magnusson]." Both NDAs also contained
identical alternative dispute resolution clauses that called
for "[a]ny dispute under this Agreement" to be
subject to arbitration in the event mediation was
January 2018, appellee sued appellants alleging causes of
action for assault, sexual assault, and battery. She alleged
the events giving rise to her causes of action occurred after
Magnusson called her to his home. She alleged AFC was
directly liable because Magnusson was acting at such time as
a principal or vice principal of AFC and because AFC failed
to provide a safe workplace. She also alleged AFC was
vicariously liable for Magnusson's conduct.
filed a joint motion to compel arbitration, asserting
appellee's claims were "squarely covered" by
the arbitration clauses of the NDAs because appellee alleged
the assault, sexual assault, and battery occurred in the
course and scope of both Magnusson's and her employment.
Attached to the motion were copies of the NDAs,
Magnusson's declaration stating that he witnessed
appellee sign the agreements, and heavily redacted emails
between the parties regarding settlement and mediation.
response to the motion, appellee argued there was not a valid
arbitration agreement because there was no consideration to
support the NDAs, no meeting of the minds that sexual assault
could not be disclosed, and the arbitration clauses were
unconscionable. Additionally, she asserted that even if the
agreements are valid, the claims raised in her petition are
not covered by them.
trial court conducted a hearing and subsequently denied
appellants' motion to compel without stating a basis.
This appeal followed.
review a trial court's order denying a motion to compel
arbitration for an abuse of discretion. Henry v. Cash
Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). We defer to the
trial court's determinations if they are supported by
evidence but review its legal determinations de novo.
Id. Whether the claims in dispute fall within the
scope of a valid arbitration agreement is a question of law.
may require a party to submit a dispute to arbitration only
if the party has agreed to do so. See Seven Hills
Commercial, LLC v. Mirabel Custom Homes, Inc., 442
S.W.3d 706, 714 (Tex. App.-Dallas 2014, pet. denied). A party
seeking to compel arbitration must establish a valid
arbitration agreement exists and that the claims asserted are
within the scope of the agreement. Id. at 715. To
determine whether a party's claims are within the scope
of an arbitration agreement, we focus on the factual
allegations and not on the legal causes of action asserted.
Inre FirstMerit Bank, N.A., 52 S.W.3d 749,
754 (Tex. 2001). We resolve any doubts about the factual
scope in favor of arbitration. Id. Although both
Texas and federal policy strongly favor arbitration, that
policy "cannot serve to stretch a contractual clause