Court of Appeals of Texas, Third District, Austin
Cielo Property Group, LLC; Robert Dillard, III; and Robert Gandy, IV, Appellants
Branigan Mulcahy, Appellee
THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-18-003429, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
Justices Goodwin, Baker, and Smith
interlocutory appeal, appellants Cielo Property Group, LLC,
and its principals Robert Dillard, III, and Robert Gandy, IV,
challenge a district court's order denying their joint
motion to compel arbitration of certain claims arising from
the former employment of Branigan Mulcahy by G&A
Partners, an entity not party to this suit. We will reverse
the order denying the motion to compel arbitration and remand
for further proceedings consistent with this opinion.
2014, Mulcahy began working jointly for G&A Partners and
Cielo Property Group-which G&A refers to as one of its
"clients"-as vice president of property
acquisitions pursuant to an employment agreement executed by
Mulcahy and G&A. Cielo Property Group is not a signatory
to the employment agreement but is named as an intended
beneficiary of that contract. As part of Mulcahy's
compensation package, G&A and Cielo Property Group
granted Mulcahy an interest in several properties under
development through a series of LLC membership agreements.
Cielo Property Group, on behalf of itself and G&A,
terminated Mulcahy's employment in 2018, citing alleged
"failure to perform, insubordination, and
abrasiveness" as reasons for the termination. It then
apparently revoked Mulcahy's interest in the properties.
sued Cielo Property Group for breach of contract, unjust
enrichment, and employment discrimination, seeking to recover
unpaid compensation and the property interests he had
acquired in certain developments. He sued Dillard and Gandy
for breach of fiduciary duty. The defendants responded with a
general answer and a motion to compel arbitration, arguing
that all Mulcahy's claims are subject to the arbitration
clause in Mulcahy's employment agreement with G&A
Partners. Mulcahy disagreed, arguing that only G&A
executed that employment agreement and therefore that his
claims are not subject to its arbitration clause.
district court held a hearing, requested additional briefing,
and then denied the motion to compel. After filing two
unsuccessful requests for reconsideration of the issue, the
defendants timely perfected this appeal. See Tex. R.
App. P. 28.1.
single issue, appellants contend the district court erred by
denying their motion to compel. A party seeking to compel
arbitration must establish the existence of a valid,
enforceable arbitration agreement and that the asserted
claims fall within the agreement's scope. Henry v.
Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). The party
seeking arbitration has the initial burden to present
evidence of an arbitration agreement. Id. Once the
existence of an arbitration agreement has been established, a
presumption attaches favoring arbitration. Id. The
burden then shifts to the opposing party to establish an
affirmative defense or to show that the dispute falls outside
the scope of the agreement. Id. "Courts should
not deny arbitration 'unless it can be said with positive
assurance that an arbitration clause is not susceptible of an
interpretation which would cover the dispute at
issue.'" Prudential Sec. Inc. v. Marshall,
909 S.W.2d 896, 899 (Tex. 1995) (orig. proceeding) (per
curiam) (quoting Neal v. Hardee's Food Sys.,
Inc., 918 F.2d 34, 37 (5th Cir. 1990)). We construe a
contract's unambiguous language as a matter of law.
Garg v. Pham, 485 S.W.3d 91, 102 (Tex. App.-Houston
[14th Dist.] 2015, no pet.). We review the disposition of a
motion to compel arbitration for an abuse of discretion.
Natgasoline LLC v. Refractory Constr. Servs., Co.,
566 S.W.3d 871, 884 (Tex. App.-Houston [14th Dist.] 2018,
pet. denied). A court abuses its discretion when it acts
without regard for governing legal principles. Id.
Against Cielo Property Group
In relevant part, the arbitration clause in the employment
To the fullest extent permitted by law, all disputes
between you and G&A or between you and all Clients to
which you are assigned shall be submitted to binding
arbitration pursuant to the Federal Arbitration Act and the
American Arbitration Association's National Rules for the
Resolution of Employment dispute.
is a maximally inclusive term. It denotes the inclusion of
every possible element of a given set and to prevent the
exclusion of any one of those elements. See William
of Sherwood, Treatise on Syncategorematic Words 17
(N. Kretzmann trans., University of Minnesota Press 1968)
("It must be known that 'every' or 'all'
signifies universality." (translated from Latin)). As
the Supreme Court of Texas describes it, "all"
denotes "'the whole number, quantity, or amount'
or 'the whole of.'" RSUI Indem. Co. v. Lynd
Co., 466 S.W.3d 113, 124 (Tex. 2015) (quoting
Merriam-Webster's Dictionary and Thesaurus 23
(2014)); see also Henry, 501 S.W.3d at 115
(discussing expansive nature of "all disputes");
Pinto Tech. Ventures, L.P. v. Sheldon, 526 S.W.3d
428, 439 & n.47 (Tex. 2017) (describing the
"necessarily" broad scope of the phrase "any
dispute"). Thus, given the parties' stipulation that