Red Bluff, LLC v. Nicole Tarpley ( 2018 )

Affirmed and Memorandum Opinion filed December 21, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00505-CV
RED BLUFF, LLC, Appellant
V.
NICOLE TARPLEY, Appellee
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 2016-50146
MEMORANDUM OPINION
Appellant Red Bluff, LLC appeals the trial court’s interlocutory order denying
its motion under the Federal Arbitration Act (FAA) to compel arbitration of the claims
appellee Nicole Tarpley asserted against it.1 In a single issue with multiple sub-parts,
1
See Tex. Civ. Prac. & Rem. Code Ann. § 51.016 (West 2015) (party may appeal from an
interlocutory order of a district court “under the same circumstances that an appeal from a federal
district court’s order . . . would be permitted by 9 U.S.C. Section 16.”).
Red Bluff contends the trial court erred in denying its motion to compel arbitration
because it is entitled to enforce the arbitration clause as a third-party beneficiary and
under principles of estoppel, and because the trial court erred in concluding Red Bluff
failed to prove it opted into the agreement containing the clause.
We overrule Red Bluff’s issue. Red Bluff did not assert in the trial court that it
is a third-party beneficiary, so that argument is not preserved for our review. Nor can
Red Bluff rely on estoppel to enforce the agreement because Tarpley has not made an
inconsistent statement and does not rely on the agreement containing the arbitration
provision for her claims. Finally, the trial court correctly concluded that Red Bluff
failed to establish that the expressly stated procedure for opting into the agreement
containing the arbitration clause was followed. We therefore affirm the trial court’s
order denying the motion to compel.
BACKGROUND
Red Bluff d/b/a Courtyards of Pasadena employed Tarpley as a nurses’ aide at
its facility in Pasadena. Upon her hire, Tarpley executed a Plan Enrollment and
Arbitration Agreement. In doing so, Tarpley enrolled in the Employee Injury Benefit
Plan (the Plan) offered by Red Bluff’s parent company, THI of Texas, LLC. The Plan
is offered in lieu of workers’ compensation insurance to employees of THI and THI’s
affiliates that adopt the Plan. The Plan provides that an affiliate may adopt the Plan,
thus becoming a defined Employer,2 through the following procedure:
8.1 Adoption Procedure. Any subsidiary or affiliate of an Employer
may become an Employer under this Plan provided that:
(a) The Board of Directors or other governing body of the
Company [defined as THI] approves the adoption of the Plan by the
2
The Plan defines Employer as “the Company [THI] and each of its affiliates which adopt
this Plan.”
2
subsidiary or affiliate and designates such subsidiary or affiliate as an
Employer; and
(b) The subsidiary or affiliate adopts the Plan together with all
amendments then in effect by appropriate resolutions of the Board of
Directors or other governing authority of the subsidiary or affiliate.
8.2 Effect of Adoption by Employer. Any subsidiary or affiliate of an
Employer which adopts the Plan shall be deemed to be an Employer for
purposes of this Plan, unless otherwise specified in the resolutions of the
Board of Directors of the Company designating the subsidiary or affiliate
as an Employer.
A Summary Plan Description given to employees states that each employee who
desires to participate in the Plan must sign and deliver the Plan Enrollment and
Arbitration Agreement, thereby agreeing “to arbitrate all claims relating to the
Accident and your Injury, Cumulative Trauma or Occupational Disease, including
claims of Employer negligence.” The Plan Enrollment and Arbitration Agreement
contains the following details regarding the arbitration:
THI of Texas, LLC (“Company”) (“Employer”) maintains an Employee
Injury Benefit Plan (the “Plan”) to pay benefits to Participants due to
injuries or illnesses incurred in the course and scope of employment with
Company or affiliates of Company who adopt the Plan.
* * *
By signing this Agreement, the Employer and I each agree to binding
arbitration of all claims and disputes described hereafter, whether these
claims and disputes exist now or arise in the future. . . . The claims,
disputes and allegations subject to binding arbitration under this
Agreement include my claims involving Employer, as well as Employer’s
claims against me, for:
1. Employer’s negligence, gross negligence, strict liability, intentional
act, omission or any other claim or cause of action with respect to any
employment-related injuries, trauma or illness;
2. Tort claims (including, but not limited to, any claims for bodily injury
or physical, mental or psychological injury) for injuries, trauma or
illness I may sustain in the course and scope of my employment;
3
* * *
The appeal of a full or partial denial of benefits under the Plan is not
covered by this Agreement.
The enrollment sheet is signed by Tarpley and THI.3
Tarpley alleges she was performing her duties and was injured while helping
transfer a patient from a bed to a wheelchair. After her injury, Tarpley received benefits
under the Plan in the amount of $3,283.15. She also filed this lawsuit against Red Bluff
for damages, alleging that Red Bluff caused her injury and asserting the following
claims: negligence under a theory of premises liability, negligence per se, and gross
negligence.
Red Bluff moved to compel arbitration of Tarpley’s claims pursuant to the
provisions of the Plan Enrollment and Arbitration Agreement. Red Bluff explained
that as a non-subscriber to workers’ compensation, it offers benefits pursuant to the
Plan and Tarpley enrolled in the Plan. Red Bluff argued that as an affiliated entity of
THI, it falls within the definition of “Employer” under the Plan and is thus entitled to
enforce the arbitration agreement as a non-signatory. Red Bluff also asserted that
direct-benefits estoppel allowed it to enforce the arbitration provision against Tarpley
because she had accepted benefits under the Plan. Finally, Red Bluff asserted the
agreement was not against public policy because Tarpley was not coerced or under
duress when she joined and accepted benefits from the Plan.
Tarpley opposed the motion to compel arbitration, contending, among other
things, that Tarpley and Red Bluff had no agreement to arbitrate. According to Tarpley,
the arbitration agreement is between THI and Tarpley only, and Red Bluff cannot argue
3
The Enrollment Sheet and Arbitration Agreement provides that arbitration under the
agreement is governed by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-14. Neither party to this
appeal disputes the FAA’s application.
4
it falls within the definition of Employer contained in the Plan because the Plan does
not incorporate the Plan Enrollment and Arbitration Agreement (or vice versa).
Tarpley also argued Red Bluff does not fall within the definition of Employer in the
Plan because there is no evidence that Red Bluff followed the requirements to adopt
the Plan. Tarpley contended estoppel is inapplicable because she does not assert any
claim or seek any benefit under the Plan in this lawsuit.
At the hearing on the motion to compel arbitration, the trial court expressed
concern that Red Bluff had presented no evidence that it had actually adopted the Plan.
The trial court allowed Red Bluff a short amount of time to file such evidence. Red
Bluff responded with an affidavit signed by its Administrator, Adeyemi O. Alabi-
Isama, stating that “Red Bluff has adopted the Plan and all if [sic] its amendments.”
Red Bluff provided no corporate resolutions or board approval documents regarding
adoption of the Plan. Tarpley objected to the affidavit as conclusory. The trial court
agreed the affidavit was conclusory and signed an order denying the motion to compel
arbitration. The trial court expressly stated in the order that “[t]he operative documents
indicate clearly that Defendant [Red Bluff] must affirmatively opt in to the arbitration
agreement. Defendant offers an entirely conclusory affidavit that its Board opted in
but offers nothing in support.” This appeal followed.
ANALYSIS
Red Bluff argues on appeal that the trial court’s focus on whether Red Bluff
opted into to the arbitration agreement is not dispositive of its right to compel
arbitration for three reasons: (1) Red Bluff is a third-party beneficiary of the arbitration
agreement; (2) Tarpley is estopped from denying the agreement; and (3) Red Bluff
conclusively established that it opted into the Plan and is thus an Employer entitled to
enforce the arbitration agreement. For the reasons discussed below, we conclude the
5
trial court acted within its discretion in denying the motion to compel.
I. Standard of review and applicable law
We review the trial court’s order denying Red Bluff’s motion to compel
arbitration under an abuse-of-discretion standard, deferring to the trial court on factual
determinations that are supported by the evidence and reviewing legal determinations
de novo. See Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex. 2008); Smart Call, LLC
v. Genio Mobile, Inc., No. 14-13-00223-CV, 2014 WL 3955083, at *4 (Tex. App.—
Houston [14th Dist.] Aug. 14, 2014, pet. denied) (mem. op.). A party seeking to
compel arbitration has the burden first of establishing the existence of a valid
arbitration agreement. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001).
A trial court’s determination regarding the existence of an agreement is a legal question
that we review de novo. Jody James Farms, JV v. Altman Group, Inc., 547 S.W.3d
624, 633 (Tex. 2018); J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.
2003).
In determining whether an agreement to arbitrate exists, courts apply ordinary
principles regarding contract formation. See J.M. Davidson, 128 S.W.3d at 227-28
(“Arbitration agreements are interpreted under traditional contract principles.”). The
primary concern in construing the contract is to ascertain the intention of the parties as
expressed in the agreement. Jody James Farms, 547 S.W.3d at 633 (“Who is bound
by an arbitration agreement is normally a function of the parties’ intent, as expressed
in the agreement’s terms.”).
Ordinarily, only signatories to an arbitration agreement may enforce its
provisions. See G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 524
(Tex. 2015). Non-signatories seeking to compel arbitration must “establish that they
have a valid legal right to enforce the . . . arbitration agreement even though they are
6
not parties to that contract.” Id. Courts have noted six situations in which arbitration
agreements may be enforced by non-signatories: (1) incorporation by reference, (2)
assumption, (3) agency, (4) alter ego, (5) equitable estoppel, and (6) third-party
beneficiary. Jody James Farms, 547 S.W.3d at 633.
The evidentiary standards applicable to a motion to compel arbitration are the
same as those applicable to a motion for summary judgment. In re Estate of Guererro,
465 S.W.3d 693, 703 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc).
Thus, a party moving to compel arbitration must present complete summary proof that
an agreement to arbitrate exists and requires arbitration of the dispute. Id.
II. Red Bluff did not establish a valid basis for compelling arbitration.
A. Red Bluff did not argue in the trial court that it is a third-party
beneficiary of the arbitration agreement.
It is undisputed that Red Bluff is not a signatory to the arbitration agreement.
Instead, it argues on appeal that it is entitled to enforce the agreement as a third-party
beneficiary. Tarpley responds that Red Bluff did not preserve this argument in the trial
court.
We agree with Tarpley that Red Bluff did not preserve its argument that it can
enforce the agreement as a third-party beneficiary. In its motion to compel, Red Bluff
argued that it is entitled to enforce the agreement because it is an affiliate of THI, thus
bringing it within the definition of Employer for purposes of arbitration. It did not
mention anywhere in its motion that it purported to be a third-party beneficiary of the
agreement or that it was entitled to third-party beneficiary status under the agreement.
As a result, the third-party beneficiary argument may not be raised for the first time on
appeal. See Tex. R. App. P. 33.1; Carr v. Main Carr Dev., LLC, 337 S.W.3d 489, 494
(Tex. App.—Dallas 2011, pet. denied); see also Garcia v. Alvarez, 367 S.W.3d 784,
788 ((Tex. App.—Houston [14th Dist.] 2012, no pet.) (party’s argument on appeal must
7
comport with its argument in the trial court).
In its reply brief, Red Bluff argues that although its motion did not expressly use
the phrase “third-party beneficiary,” the motion “describes a third party beneficiary
claim” because “Red Bluff expressly argued it was entitled to compel arbitration as an
affiliate of THI pursuant to an arbitration agreement for its own employees.”4 We
disagree that this language preserved an argument that Red Bluff is a third-party
beneficiary. Red Bluff’s status as an affiliate of THI does not automatically make it a
third-party beneficiary under the agreement. To establish its right to enforce the
agreement as a third-party beneficiary, Red Bluff must prove that “the parties to the
contract intended to secure a benefit to [Red Bluff] and entered into the contract directly
for [Red Bluff’s] benefit.” Jody James Farms, 547 S.W.3d at 635 (internal quotations
omitted). The intent must be more than incidental, and it must be clearly and fully
spelled out in the agreement. See id. (concluding a contract’s description of its intended
use cannot—on its own—confer third-party-beneficiary status). “A court will not
create a third-party beneficiary contract by implication.” MCI Telecomm. Corp. v. Tex.
Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999).
Red Bluff’s argument in the trial court was that it met the definition of an affiliate
of THI and thus fell within the definition of an Employer entitled to enforce the
4
Red Bluff also states in its reply brief that its motion to compel pre-dated the Supreme Court of
Texas’s decision in First Bank v. Brumitt, 519 S.W.3d 95 (Tex. 2017), by a mere ten days. To the
extent Red Bluff contends by this statement that it did not need to raise the third-party beneficiary
claim in the trial court because the Brumitt opinion had not yet issued, we reject the contention. The
doctrine of third-party beneficiary as a means of enforcing an arbitration agreement was recognized
by several courts prior to the issuance of the Brumitt opinion. See, e.g., In re Kellogg Brown & Root,
Inc., 166 S.W.3d 732, 739 (Tex. 2005); Carr, 337 S.W.3d at 495. The Brumitt court addressed
whether a court could consider extrinsic evidence in determining whether a person is a third-party
beneficiary of an unambiguous, written contract. See First Bank, 519 S.W.3d at 106–10. The Brumitt
case did not involve an arbitration agreement. See id.
8
agreement under In re Rubiola, 334 S.W.3d 220 (Tex. 2011).5 Red Bluff did not argue
anywhere that THI and Tarpley executed the agreement for Red Bluff’s express benefit.
The argument Red Bluff advances on appeal is different from its argument in the trial
court. As a result, Red Bluff failed to preserve its argument for compelling arbitration
as a third-party beneficiary. See Garcia, 367 S.W.3d at 788.
B. Tarpley is not estopped to deny arbitration.
Red Bluff next asserts two estoppel grounds for compelling arbitration:
(1) Tarpley’s admission that Red Bluff is her employer; and (2) Tarpley’s acceptance
of benefits under the Plan. Neither ground establishes Red Bluff’s right to compel
arbitration.
First, Red Bluff points to Tarpley’s statements in her petition as a judicial
admission that “she was an ‘employee’ of Red Bluff, who injured her by failing to
maintain a safe work environment for its ‘employees.’” Red Bluff argues that Tarpley
has taken an inconsistent position by admitting she is a Red Bluff employee while
denying that Red Bluff is her “employer” under the arbitration provision. Red Bluff
cites no authority supporting its claim that a purported inconsistent statement by the
party resisting arbitration would allow a non-signatory to compel arbitration. In any
event, Tarpley’s statements that she is an employee of Red Bluff is not inconsistent
with her position that Red Bluff is not a defined “Employer” for purposes of the
arbitration provision. (The latter is a matter of contract interpretation.) Tarpley’s
statements do not support Red Bluff’s estoppel argument. Cf. Trelltex, Inc. v. Intecx,
L.L.C., 494 S.W.3d 781, 790 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (waiver
requires proof of party’s intent to relinquish a right or conduct inconsistent with right).
Second, under the theory of direct-benefits estoppel, a party may be compelled
5
As we explain in the next section, In re Rubiola does not support Red Bluff’s argument that
it meets the definition of Employer under the Plan.
9
to arbitrate a claim “if it seeks, through the claim, to derive a direct benefit from the
contract containing the arbitration provision.” In re Kellogg Brown & Root, Inc., 166
S.W.3d 732, 741 (Tex. 2005); see Cooper Indus., LLC v. Pepsi-Cola Metro. Bottling
Co., 475 S.W.3d 436, 442 (Tex. App.—Houston [14th Dist.] 2015, no pet.). We look
to the substance of the claim, not artful pleading, to determine whether a party seeks a
benefit from a contract containing an arbitration provision. Carr, 337 S.W.3d at 498-
99. When the substance of the claims arises from general obligations imposed by state
law, including tort or other common-law duties, direct-benefits estoppel does not apply.
Jody James Farms, 547 S.W.3d at 637. This result holds true even if the claim refers
to the contract or would not have arisen “but for” the contract’s existence. Id.; G.T.
Leach Builders, 458 S.W.3d at 528.
Red Bluff has not established that Tarpley’s claims rely on or seek benefits from
the Plan. In her petition, Tarpley does not base any of her claims on the Plan. She does
not contend that Red Bluff violated the Plan in any respect. Instead, Tarpley contends
Red Bluff violated common-law duties to provide a safe workplace, train her, and warn
her of the alleged condition of a wheelchair. These claims would exist even if Tarpley
had not executed or received benefits under the Plan. Tarpley’s claims are independent
of the Plan and rely on general, non-contractual duties. See Jody James Farms, 547
S.W.3d at 638. Therefore, direct-benefits estoppel does not apply. Id.
C. Red Bluff failed to establish that it opted into the agreement.
Finally, and in the alternative, Red Bluff argues that it conclusively proved it
opted into the Plan and related arbitration agreement. We agree with the trial court’s
conclusion that “the operative documents indicate clearly that [Red Bluff] must
affirmatively opt in to the arbitration agreement.” That is, under the Plan’s express
provisions, Red Bluff’s status as a subsidiary of THI does not make it an “Employer”
under the Plan. Instead, Red Bluff had the burden of establishing that it became an
10
“Employer” under the express procedure stated in the Plan.
The Plan defines “Employer” as “the Company and each of its affiliates which
adopt this Plan.” An adoption procedure for affiliates is set forth in Section 8.1. The
procedure requires two steps: (a) THI’s board must approve the affiliate’s adoption of
the Plan and designate it as an Employer; and (b) the affiliate must adopt the Plan with
all amendments then in effect by appropriate resolutions of its board. Under the express
language of the Plan, affiliates are not automatically given the status of Employer. To
allow Red Bluff rights under the Plan as an Employer without establishing that the
adoption procedure was followed would fail to give effect to all provisions in the
contract. See MCI Telecomm., 995 S.W.2d at 652.
Red Bluff cites In re Rubiola, 334 S.W.3d 220 (Tex. 2011), and Sherer v. Green
Tree Servicing LLC, 548 F.3d 379, 382 (5th Cir. 2008), in support of its contention that
Red Bluff is “an employer entitled to compel arbitration.” Both cases involved
different and broader contract language than the language in the Plan. In Rubiola, the
definition of parties entitled to enforce the arbitration provision expressly included
“individual partners, affiliates, officers, directors, employees, agents, and/or
representatives of any party to such documents and shall include any other owner and
holder of this agreement.” 334 S.W.3d at 222–23. The supreme court held that “[t]he
arbitration agreement expressly provides that certain non-signatories are considered
parties,” including officers and representatives of the company that signed the
agreement, and thus the officers were “non-signatory parties to the arbitration
agreement under the agreement’s terms.” Id. at 224-25. Likewise, in Scherer, the Fifth
Circuit held that the non-signatory lender could enforce an arbitration agreement in the
loan documents because “[a]ccording to the broad terms of the Loan Agreement, Sherer
has agreed to arbitrate any claims arising from ‘the relationships which result from
th[e] [a]greement.’ A loan servicer, such as Green Tree, is just such a ‘relationship.’”
11
548 F.3d at 382.
In this case, Tarpley agreed to arbitrate her claims with an “Employer” as defined
under the Plan. The Summary Plan Description states: “Pursuant to the agreement, you
and Employer agree to arbitrate all claims relating to the Accident and your Injury . . .
.” The Plan Enrollment and Arbitration Agreement states: “By signing this Agreement,
the Employer and I each agree to binding arbitration of all claims and disputes
described hereafter, whether these claims and disputes exist now or arise in the future.”
Under the Plan, Employer is defined to include those affiliates of THI that have adopted
the Plan. Absent competent evidence that Red Bluff adopted the Plan according to the
adoption procedure set forth in the Plan, Red Bluff is not a “non-signatory part[y] to
the arbitration agreement under the agreement’s terms.” Rubiola, 334 S.W.3d at 225.
Tarpley argues that even had Red Bluff become a defined “Employer” under the
adoption procedure provided in the Plan, it would not be entitled to arbitration because
the Plan Enrollment and Arbitration Agreement is a separate document from the Plan,
there is no language of incorporation by reference, and the Plan Enrollment and
Arbitration Agreement defines “Employer” only as THI. According to Tarpley, we
cannot look to the Plan for the definition of “Employer.” We disagree. The arbitration
provision is contained in the document titled Plan Enrollment and Arbitration
Agreement. It expressly references the Plan, recognizes that affiliates of THI may
adopt the Plan, and makes execution of the Plan Enrollment and Arbitration Agreement
a condition of the employee’s enrollment in the Plan. The Plan and the Plan Enrollment
and Arbitration Agreement are thus part of the same transaction, and we construe them
together to allow a THI affiliate who follows the adoption procedure to be deemed an
“Employer” for purposes of the arbitration provision. See Fort Worth Indep. Sch. Dist.
v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000) (describing “well-established
law” that instruments pertaining to the same transaction may be read together to
12
ascertain the parties’ intent, even if executed at different times and instruments do not
expressly refer to each other).
We therefore consider whether Red Bluff conclusively proved that it became an
“Employer” under the adoption procedure specified in the Plan. The affidavit
submitted by Red Bluff stated that “Red Bluff has adopted the Plan and all of its
amendments.” Red Bluff challenges the trial court’s decision to disregard the affidavit
as conclusory. We need not decide whether the trial court was correct because even if
the affidavit is considered, it fails to meet Red Bluff’s burden of establishing that the
adoption procedure was followed.
As noted above, the Plan sets forth the required two-step procedure for its
adoption by a subsidiary such as Red Bluff.6 First, the THI board must “approve[] the
adoption of the Plan by the subsidiary . . . and designate[] [it] as an Employer . . . .”
Second, the subsidiary must “adopt[] the Plan together with all amendments then in
effect by appropriate resolutions of the Board of Directors or other governing authority
of the subsidiary . . . .”
The affidavit submitted by Red Bluff addresses only a part of the second required
step: whether Red Bluff adopted the Plan. The affidavit does not address whether Red
Bluff had been approved and designated by THI’s board, nor does it state that Red
Bluff’s board or governing body had adopted the Plan by appropriate resolutions of its
board. The affidavit also does not contain any facts from which a court could conclude
that these steps of the required procedure were carried out.7 Because the affidavit does
6
In its brief, Red Bluff states “[t]here is no formal requirement in the Plan documents
regarding how Red Bluff is permitted to opt in under the Plan. Rather, the plain language merely
requires the Board of Directors for Red Bluff to designate itself as an employer and ‘approve [] the
adoption of the Plan.’” This argument is contrary to the express procedure set forth in the Plan for its
adoption by subsidiaries and affiliates of THI, which does not simply permit Red Bluff to designate
itself.
7
On appeal, Red Bluff cites cases addressing the personal knowledge requirement to argue
13
not address steps required for Red Bluff to become an “Employer” under the Plan, Red
Bluff did not meet its burden of establishing it was an “Employer” entitled to invoke
the arbitration provision, and the trial court did not abuse its discretion in denying the
motion to compel. See Guerrero, 465 S.W.3d at 708 (“We conclude the trial court did
not abuse its discretion in denying Champion’s motion to compel arbitration because
Champion failed to meet its burden to establish the existence of an arbitration
agreement.”).
CONCLUSION
We overrule Red Bluff’s issue on appeal and affirm the trial court’s order
denying Red Bluff’s motion to compel arbitration.
/s/ J. Brett Busby
Justice
Panel consists of Chief Justice Frost and Justices Busby and Wise.
the affidavit was sufficient. See, e.g., In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 224
(Tex. 2004) (holding privilege-log affidavit sufficient because “an affiant’s acknowledgment of the
sources from which he gathered his knowledge does not violate the personal knowledge
requirement”); Martinez v. Hays Constr., Inc., 355 S.W.3d 170, 178-79 (Tex. App.—Houston [1st
Dist.] 2011, no pet.), disapproved on other grounds by Gonzalez v. Ramirez, 463 S.W.3d 499, 504
(Tex. 2015) (discussing personal knowledge requirement and holding corporate representative can
gather knowledge from other corporate sources); Asshauer v. Glimcher Realty Trust, 228 S.W.3d 922,
926 (Tex. App.—Dallas 2007, no pet.) (holding corporate representative affidavit sufficient where
affiant stated basis of knowledge was review of business records and documents). But the decisive
shortcoming of Red Bluff’s affidavit in this case is not the lack of personal knowledge of its affiant,
it is the lack of facts supporting the conclusion that Red Bluff adopted the Plan under the procedure
set forth in the Plan.
14