Redi-Mix, LLC D/B/A Custom-Crete v. Oscar R. Martinez ( 2018 )

Affirmed; Opinion Filed July 25, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01347-CV
REDI-MIX, LLC D/B/A CUSTOM-CRETE, Appellant
V.
OSCAR R. MARTINEZ, Appellee
On Appeal from the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-08755
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Myers
Redi-Mix, LLC d/b/a Custom-Crete appeals the trial court’s order denying its motion to
compel arbitration of Oscar R. Martinez’s suit against it. Appellant brings one issue on appeal
contending the trial court abused its discretion by denying the motion to compel arbitration. We
conclude that some evidence supports the trial court’s order denying the motion to compel
arbitration, and we affirm the order.
BACKGROUND
Martinez alleged in his petition that he was “employed by the Defendant,” “Custom-Crete,
U.S. Concrete Company d/b/a Redi-Mix, LLC” from 1993 until his termination in 2016. He stated
in the petition that he was a “loader/operator” and that he “also cleaned the offices.” When a
manager at the defendant made racist remarks about Mexicans, Martinez “reported his racism.” In
2016, Martinez reported to the defendant’s management that he had pain in his shoulder; however,
“the Defendant ignored him.” Four months later, Martinez reported that the pain was worse, and
he requested an accommodation. Martinez was then sent home. Later, someone from the
defendant called him and said he had reviewed video footage of Martinez cleaning the offices. He
told Martinez he “had too much arm movement on video,” and he told Martinez he was terminated.
Martinez sued “Custom-Crete, U.S. Concrete Company d/b/a Redi-Mix, LLC” alleging the
defendant terminated him unlawfully and violated the Texas Commission on Human Rights Act
and the Texas Labor Code by discriminating against him based on his disability and his national
origin. Appellant answered, stating it was misnamed in Martinez’s petition. Appellant then filed
a motion to compel arbitration and to stay further proceedings. Martinez responded, asserting
there was no arbitration agreement between him and appellant. The trial court denied the motion
to compel arbitration, and appellant filed this interlocutory appeal. See TEX. CIV. PRAC. & REM.
CODE ANN. § 51.016 (West 2015) (permitting appeal of orders under the Federal Arbitration Act
“under the same circumstances that an appeal from a federal district court’s order or decision
would be permitted by 9 U.S.C. Section 16”); id. § 171.098 (West 2011) (permitting appeal of
order denying motion to compel arbitration under Texas Arbitration Act); see also 9 U.S.C. §
16(a)(1)(B) (permitting appeal from order denying petition for order directing parties to arbitrate).
ARBITRATION AGREEMENT
The arbitration agreement in this case was part of an “Alternative Dispute Resolution
Plan.” The agreement stated any dispute regarding “Employee’s employment with an Employer
(‘Redi-Mix, L.P.’ or ‘Redi-Mix Concrete, L.P.’) shall be submitted to final and binding
arbitration.” The agreement stated it included claims “[t]hat Employer has treated Employee
unfairly or discriminated against employee in connection with a work related injury,” claims for
“wrongful discharge,” and “claims for discrimination (including but not limited to race, . . .
national origin, . . . or medical condition, handicap or disability).” The agreement also indicated
–2–
in several places that the employer was “Redi-Mix, L.P. or Redi-Mix Concrete, L.P.” or “Redi-
Mix, L.P. and/or Redi-Mix Concrete, L.P.” Martinez signed the agreement, but there was no
signature or signature block for the employer. The agreement stated it “is expressly made pursuant
to and shall be governed by Federal Arbitration Act.” Although the agreement referred repeatedly
to “Redi-Mix, L.P.,” it did not mention appellant’s correct name, “Redi-Mix, LLC.”
MOTION TO COMPEL
In its sole issue on appeal, appellant contends the trial court abused its discretion by
denying appellant’s motion to compel arbitration.
Standard of Review
Under the Federal Arbitration Act, the courts decide “gateway matters,” including whether
a valid arbitration agreement exists. G.T. Leach Builders, LLC v. Sapphire V.P., L.P., 458 S.W.3d
502, 519 (Tex. 2015); In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005) (orig.
proceeding). To make that determination, Texas courts apply Texas procedural rules. In re
Weekley Homes, 180 S.W.3d at 130.
“We review an order denying a motion to compel arbitration under an abuse of discretion
standard.” Bonded Builders Home Warranty Ass’n of Tex., Inc. v. Smith, 488 S.W.3d 468, 476
(Tex. App.—Dallas 2016, no pet.). Under this standard of review, we defer to the trial court’s
factual determinations if they are supported by evidence, but we review the trial court’s legal
determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig.
proceeding); Bonded Builders, 488 S.W.3d at 476. Whether an arbitration agreement is
enforceable is subject to de novo review. In re Labatt Food Serv., L.P., 279 S.W.3d at 643. Where,
as here, the trial court makes no written findings of fact or conclusions of law in support of its
ruling, “all facts necessary to support the judgment and supported by the evidence are
implied.” Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009)
–3–
(quoting BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)). We view the
evidence in the light most favorable to the trial court’s ruling and defer to the trial court’s resolution
of conflicting evidence. INEOS Group Ltd. v. Chevron Phillips Chem. Co., LP, 312 S.W.3d 843,
848 (Tex. App.—Houston [1st Dist.] 2009, no pet.). We affirm the ruling if it can be upheld on
any legal theory supported by the evidence. In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984) (per
curiam). We reverse a trial court for abusing its discretion only when we determine the court acted
in an unreasonable or arbitrary manner, meaning that it acted without reference to any guiding
rules and principles. Fitness Entertainment Ltd. v. Hurst, 527 S.W.3d 699, 703 (Tex. App.—El
Paso 2017, pet. denied).
Contract Interpretation
Arbitration agreements are interpreted under traditional contract-interpretation principles.
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). If a contract can be given a
certain legal meaning or interpretation, then it is not ambiguous. Coker v. Coker, 650 S.W.2d 391,
393 (Tex. 1983). An unambiguous contract is interpreted as a matter of law. Id. If a contract’s
meaning is uncertain and doubtful, or if the contract is reasonably susceptible to more than one
meaning, then the contract is ambiguous. Id. The interpretation of an ambiguous contract is an
issue for the trier of fact. Id. at 394. But if a contract is not ambiguous, “its construction and
meaning become a question of law for the court to determine.” Calpine Producer Servs., L.P. v.
Wiser Oil Co., 169 S.W.3d 783, 787 (Tex. App.—Dallas 2005, no pet.) (quoting Dedier v.
Grossman, 454 S.W.2d 231, 234 (Tex. Civ. App.—Dallas 1970, writ ref’d n.r.e.)). “[T]he primary
concern of the court is to ascertain the true intentions of the parties as expressed in the instrument.”
Coker, 650 S.W.2d at 393. “To achieve this objective, courts should examine and consider the
entire writing in an effort to harmonize and give effect to all the provisions of a contract so that
none will be rendered meaningless.” Id. (emphasis omitted).
–4–
Employment Arbitration Agreements
A party seeking to compel arbitration must prove the existence of a valid arbitration
agreement. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 20005) (orig.
proceeding). Part of this requirement is that the arbitration agreement be between the parties. IHS
Acquisition No. 171, Inc. v. Beatty-Ortiz, 387 S.W.3d 799, 809 (Tex. App.—El Paso 2012, no
pet.). “An employer may enforce an arbitration agreement entered into during an at-will
employment relationship if the employee received notice of the employer’s arbitration policy and
accepted it.” In re Dallas Peterbilt, Ltd., L.L.P., 196 S.W.3d 161, 162 (Tex. 2006) (orig.
proceeding) (per curiam). Thus, for appellant to prevail on appeal, there must be no evidence in
support of the trial court’s implied finding that Martinez did not receive notice of appellant’s
arbitration policy and accept it. The question in this case is whether there is any evidence that the
arbitration policy presented to Martinez was not appellant’s arbitration policy.
In support of its motion to compel arbitration, appellant presented the affidavit of its human
resources manager, Amanda Washington. She testified about the circumstances under which
Martinez signed the arbitration agreement:
Redi-Mix[, LLC d/b/a Custom Crete] acquired Custom-Crete from Oldcastle
Architectural Products Group, Inc. (“Oldcastle”) in October 2014. Mr. Martinez
was previously an employee of Oldcastle. As part of the acquisition, Redi-Mix
required all new employees, including Mr. Martinez, to agree to the Alternative
Dispute Resolution Plan and sign the Arbitration Agreement. I was present when
Oscar Martinez, along with approximately 45 other employees, assembled in a
conference room to discuss the Alternative Dispute Resolution Plan and sign the
Arbitration Agreement. All employees were given an opportunity to review and
ask questions before signing the Agreement. After the opportunity to review and
ask questions, Mr. Martinez signed the Arbitration Agreement in Exhibit C on
October 21, 2014. He then commenced his employment with Redi-Mix.
This testimony established that Martinez was appellant’s employee, that he received notice of the
arbitration policy, and that he continued working for appellant after receiving notice of the
arbitration policy. Additionally, appellant attached copies of Martinez’s W-2 form to its motion
–5–
to compel arbitration, which also proved Martinez worked for appellant. However, a fact question
exists concerning whether the arbitration agreement was applicable to appellant. Washington did
not testify, and no evidence shows, that Martinez was told the arbitration policy was appellant’s,
and the arbitration agreement and the Alternative Dispute Resolution Plan to which it was attached
did not name appellant as the “Employer.”
In the text of his response to the motion to compel arbitration, Martinez did not deny
signing the arbitration agreement. On appeal, Martinez admits that appellant was his employer.1
However, he asserted in his response to the motion to compel arbitration that appellant was not a
party to the arbitration agreement, so there was no contract between the parties.
Appellant asserted in its reply to Martinez’s response that it was a party to the agreement.
The arbitration agreement states it applies to disputes between the “Employee” and the
“Employer.” The agreement defines the “Employer” as “‘Redi-Mix, L.P.’ or ‘Redi-Mix Concrete,
L.P.’” The arbitration agreement was part of appellant’s Alternative Dispute Resolution Plan
which had an effective date of January 1, 2007. Appellant presented evidence that in June 2007,
there was a merger of Redi-Mix, L.P. and Redi-Mix Subsidiary, LLC. Pursuant to the Certificate
of Merger filed with the Secretary of State, Redi-Mix Subisidiary, LLC was the surviving entity
after the merger and that Redi-Mix, L.P. “will not survive the merger.” Martinez signed the
arbitration agreement on October 21, 2014, seven years after the merger and after Redi-Mix, L.P.
ceased to exist. Appellant argued that the agreement’s listing “Redi-Mix, L.P.” as the “Employer”
instead of appellant’s correct name, “Redi-Mix, LLC,” was a misnomer.
1
In his affidavit attached to his response to the motion to compel arbitration, Martinez stated, “I to my knowledge never worked for the people
Amanda Washington claims. I always took orders from U.S. Concrete/Custom-Crete.” However, he served appellant with the suit. On appeal,
Martinez does not deny that appellant was his employer. Nor does he deny that he sued appellant. Martinez stated in his appellee’s brief that he
“was employed by the Defendant-Appellant from February 9, 1993 until June 30, 2016.” He defined “Defendant-Appellant” in his brief as
“Redi-Mix, LLC d/b/a Custom-Crete,” which is appellant’s name See City of San Antonio v. Hardee, 70 S.W.3d 207, 212 (Tex. App.—San
Antonio 2001, no pet.) (court of appeals “may accept admissions made in the briefs as true”). We conclude Martinez has admitted on appeal that
he was employed by appellant and that there is no genuine issue of material fact regarding whether he was employed by appellant.
–6–
A misnomer occurs when the correct party is involved but a document misnames the party.
In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (per
curiam) (orig. proceeding). As this Court stated in AmeriPath, Inc. v. Hebert, 447 S.W.3d 319
(Tex. App.—Dallas 2014, pet. denied), “The rule as to misnomers in contracts, even for a corporate
party, is well settled . . . .” Id. at 330.
Modern law has departed from the strict rules of the common law as to use of the
corporate name. As corporations are now able to contract almost as freely as natural
persons, it is held that a departure from the strict name of a corporation will not
avoid its contract if its identity substantially appears.
Id. (quoting Houston Land & Loan Co. v. Danley, 131 S.W. 1143, 1144 (Tex. Civ. App. 1910, no
writ)). Courts will allow parties to correct misnomers in pleadings, judgments, and contracts so
long as no one was misled by the mistake. Id.
This Court’s opinion in AmeriPath, Inc. v. Hebert guides our analysis of this issue. In
AmeriPath, the employee, Hebert, and “the Company,” DFW 5.01(a) Corporation (DFW), sued
one another concerning the enforceability of a covenant not to compete in the employment
agreement. AmeriPath, 447 S.W.3d at 325–26. The agreement at issue was the fourth in a series
of employment agreements between the parties. The first two agreements correctly named “the
Company” as “DFW 5.01(a) Corporation.” Id. at 324. However, the third and fourth agreements
named “the Company” as “AmeriPath DFW 5.01(a) Corporation.” Id. Hebert moved for summary
judgment seeking a declaration that he was not bound by the covenant not to compete because the
party named in the final contract, “AmeriPath DFW 5.01(a) Corporation,” never existed. Id. at
325. He also moved for summary judgment on DFW’s claims to enforce the employment
agreement on the ground that he was not subject to the covenant not to compete. Id. at 325, 329.
DFW responded to the motion for summary judgment, asserting the doctrine of misnomer. Id. at
329. Under the summary judgment burdens of proof, Hebert, as the movant for summary
judgment, had to establish the unenforceability of the contract as a matter of law, while the
–7–
employer, as the respondent, had only to establish that there was a genuine issue of material fact
concerning the contract’s enforceability. Id.
In determining whether the doctrine of misnomer raised a fact question to bar Hebert’s
motion for summary judgment, we considered three questions: (1) was Hebert misled by the fact
that the contract misnamed DFW; (2) was DFW’s identity substantially apparent from the
agreement, and (3) did the summary judgment evidence establish whether the parties intended and
believed DFW was the contracting party. Id. at 330. Concerning the first question, misleading
Hebert, the summary judgment record contained no evidence of whether Hebert was misled.
Therefore, we could not say that Hebert “was somehow misled to his detriment by the misnaming
of his employer.” Id. at 331. On the second question, whether DFW’s identity was substantially
apparent from the fourth agreement, we observed that the correct and incorrect names used in the
four agreements were similar, the only difference being the addition of the word “AmeriPath”
before the otherwise-correct name. We also observed that the recitals in the fourth agreement
referred to “the Company” in the previous agreements, including the first two agreements where
DFW was correctly named. Id. Therefore, “the recitals support[ed] the conclusion that the parties
in the [fourth agreement] were—for the fourth time—Hebert and DFW.” Id. at 332. Concerning
the third question, the parties’ intent, we observed, “Among the most significant evidence that the
[fourth agreement] was intended to be between Hebert and DFW is the fact that the fundamental
promises made by the Company in that agreement were performed by DFW.” Id. This evidence
included that DFW employed Hebert as a pathologist and managing director and that Hebert
fulfilled those services. The evidence also included the fact that Hebert signed a contract for DFW
as DFW’s managing director, which indicated he knew he was employed by DFW. Id. We
concluded the case “[did] not fall within the ambit of cases addressing contracts with non-existing
business entities. Instead, the summary judgment evidence makes clear that Hebert contracted
–8–
with DFW . . . .” Id. at 334. We reversed the trial court’s grant of summary judgment in favor of
Hebert. Id.
Comparing this case to AmeriPath shows that the burdens of proof are reversed. In both
cases, the employer was the party seeking to enforce the contract and was the party asserting the
doctrine of misnomer. In AmeriPath, the employer was the respondent to the employee’s motion
for summary judgment and therefore had the lesser burden of raising only a fact question on each
element of the doctrine of misnomer. In this case, the employer is the party seeking to overturn a
trial court ruling, which imposes the greater burden of establishing that no evidence supported the
trial court’s ruling.
The three questions considered in AmeriPath, as applied to the fact of this case, are:
(1) Was Martinez misled by the fact that the agreement named “Redi-Mix, L.P.”
instead of “Redi-Mix, LLC”?
(2) Is appellant’s identity substantially apparent from the agreement? And,
(3) Does the evidence in the motion to compel arbitration demonstrate that the
parties intended and believed the contracting party to be appellant?
See id. at 330.
Concerning whether Martinez was misled, the record in this case, as in Ameripath, contains
no evidence one way or the other. See id. at 331. Therefore, we cannot say the evidence
conclusively establishes that Martinez was not misled.
On the second question, whether appellant’s identity was apparent from the agreement, the
evidence does not explain how appellant was intended to be the named party in the arbitration
agreement. Appellant points out that the only difference between its true name, Redi-Mix, LLC,
and its name in the arbitration agreement, Redi-Mix, L.P., is the change from L.P. to LLC.
Although that is true, the merger documents attached to appellant’s reply to the response to the
motion to compel raise a fact question as to the identity of the “Employer” in the arbitration
–9–
agreement. The merger documents may establish a misnomer in the arbitration agreement, but the
only misnomer they may establish is that the references to “Redi-Mix, L.P.” in the arbitration
agreement should have been to “Redi-Mix Subsidiary, LLC,” not “Redi-Mix, LLC.” Appellant’s
motion to compel arbitration does not explain how, or whether, Redi-Mix Subsidiary, LLC became
Redi-Mix, LLC. In its reply brief on appeal, appellant states, “Redi-Mix Subsidiary, LLC
chang[ed] its name to Redi-Mix, LLC in conjunction with the merger. As a result, Redi-Mix
Subsidiary, LLC and Redi-Mix, LLC are the same.” In support of this statement, appellant cites
Washington’s affidavit where she states, “Redi-Mix, LLC is the surviving entity between a June
28, 2007 merger of Redi-Mix, LLC and Redi-Mix, LP [sic]. Redi-Mix, LP [sic] was the non-
surviving entity.” Washington’s statement that “Redi-Mix, LLC is the surviving entity” is
contradicted by the merger records, which state that “Redi-Mix Subsidiary, LLC” was the
surviving entity. Appellant’s argument asks us to infer from the evidence that Redi-Mix
Subsidiary, LLC changed its to name Redi-Mix, LLC. However, the standards of review do not
permit us to make inferences that are contrary to the trial court’s ruling. See INEOS Group Ltd.,
312 S.W.3d at 848 (in abuse-of-discretion procedure, we view evidence in light most favorable to
trial court’s ruling and defer to trial court’s resolution of conflicting evidence). In AmeriPath,
there were prior employment agreements between the parties that correctly named the employer;
in this case, however, there are no prior arbitration agreements where appellant was correctly
named. See AmeriPath, at 331–32. We conclude appellant’s identity was not substantially
apparent from the arbitration agreement.
On the third question, whether the evidence conclusively demonstrated that the parties
intended and believed the contracting party to be appellant, the only evidence is the agreement
itself and Washington’s affidavit describing the meeting where Martinez signed the arbitration
agreement. As discussed above, Washington’s description of the meeting does not state Martinez
–10–
was told the arbitration agreement he signed applied to his employment with “Redi-Mix, LLC,”
and the standards of review do not permit us to infer that he should have known. The evidence
raises a fact question concerning who is the “Employer” in the arbitration agreement, whether it is
“Redi-Mix Subsidiary, LLC” as the successor to Redi-Mix, L.P. as the merger documents show or
whether it is Redi-Mix, LLC as the successor to Redi-Mix, L.P. as Washington testified.
In support of its motion to compel, appellant also cites IHS Acquisition No. 171, Inc. v.
Beatty-Ortiz, 387 S.W.3d 799 (Tex. App.—El Paso 2012, no pet.). In that case, the employee sued
the employer for workplace discrimination, and the employer filed a motion to compel arbitration,
which the trial court denied. Id. at 803. The employer was IHS Acquisition 171, but the arbitration
agreement stated the “Employer” was IHS Acquisition 174. The court of appeals addressed the
issue of misnomer and concluded the trial court erred by denying the motion to compel arbitration:
Even though the Agreement provides that issues of validity and enforceability must
go to an arbitrator, Appellants [the employer] still bear the burden of producing
some evidence that they were either a party to the Agreement or otherwise had
rights to enforce it. They presented an Agreement which is clearly between an
Employer and Employee. Although the Agreement defines the Employer as IHS
Acquisition 174, Appellants also produced evidence that at the time the Agreement
was signed, Beatty was employed by IHS Acquisitions [sic] 171 and that Beatty
had never been employed by IHS 174.
Id. at 809–10. Appellant argues that if IHS Acquisition is applied in this case, then appellant should
prevail because it, like IHS Acquisition, presented uncontroverted evidence of an arbitration
agreement signed by Martinez that was clearly between an employer and an employee, and
evidence that Martinez was employed by appellant and had never been employed by Redi-Mix,
L.P. The facts in the case before us, however, differ from those in IHS Acquisition. In IHS
Acquisition, the employer maintained the difference in the names was due to a scrivener’s error in
the arbitration agreement. Id. at 805. In this, case, however, appellant’s theory was that when the
arbitration agreement was created in 2007, it correctly named Redi-Mix, L.P. as the “Employer,”
but after the merger, appellant, Redi-Mix, LLC, became the “Employer.” However, the merger
–11–
documents did not prove that theory but instead presented evidence that the surviving entity was
“Redi-Mix Subsidiary, LLC,” not appellant. Although appellant tries to explain in its reply brief
that its name, Redi-Mix, LLC was the result of Redi-Mix Subsidiary, LLC changing its name as
part of the merger, no evidence in the record supports that statement. Therefore, a fact question
remains in this case that did not exist in IHS Acquisition.
Appellant also cites Raya v. Rio Management Co., LLC, No. 13-13-00711-CV, 2015 WL
4504696 (Tex. App.—Corpus Christi 2015, no pet.) (mem. op.). In that case, the
employee-plaintiff worked for Rio Management Co., and he injured himself while at work on the
premises of Wyatt Hidalgo Farms, Inc. Id. at *1. He sued Rio for his injuries sustained in the
course and scope of his employment, and he sued Wyatt Hidalgo Farms, Inc. under a premises
liability cause of action. The plaintiff had signed an arbitration agreement requiring him to
arbitrate his claims against Rio and his claims against “Wyatt Farms, Inc.” The employee asserted
he should not have had to arbitrate his claims against Wyatt Hidalgo Farms, Inc. because it was
not named in the arbitration agreement. Rio argued that “Wyatt Farms, Inc.” in the arbitration
agreement was a misnomer and that it meant “Wyatt Hidalgo Farms, Inc.” Id. “As proof, Rio
submitted the affidavit of Rio’s Human Resources and Safety Director . . . explaining the
misnomer.” Id. Rio also argued that even if there was no misnomer, then the plaintiff still had to
arbitrate its claims against Wyatt Hidalgo Farms, Inc. because it was an affiliate of Rio. Id. The
court of appeals agreed with Rio under both arguments, that Rio presented evidence proving the
misnomer and that “Wyatt Farms, Inc.” in the arbitration agreement meant “Wyatt Hidalgo Farms,
Inc.” and that the plaintiff had to arbitrate its claims against Wyatt Hidalgo Farms, Inc. because it
was Rio’s affiliate. Id. at *3–4. We conclude Raya is distinguishable. In this case, appellant tried
to explain the misnomer through Washington’s affidavit and the merger documents, but that
explanation created a fact question. Also, appellant presented no evidence that Redi-Mix, LLC
–12–
was Redi-Mix, L.P.’s affiliate but proved instead that Redi-Mix, L.P. was an entity that ceased to
exist seven years before Martinez signed the arbitration agreement. As discussed above, the
evidence proved the relationship between Redi-Mix, L.P. and Redi-Mix Subsidiary, LLC, but no
evidence shows the relationship, if any, between appellant and Redi-Mix Subsidiary, LLC.
Although Washington’s affidavit purports to show the relationship between appellant Redi-Mix,
L.P., that appellant was the surviving entity of a merger, Washington’s testimony is contradicted
by the merger documents.
We conclude appellant failed to meet its burden of showing that no evidence supported the
trial court’s decision to deny the motion to compel arbitration. Instead, we conclude some
evidence supports the trial court’s denial of the motion to compel arbitration. Therefore, appellant
has not shown the trial court abused its discretion by denying the motion to compel arbitration.
We overrule appellant’s issue on appeal.
CONCLUSION
We affirm the trial court’s order denying the motion to compel arbitration.
/Lana Myers/
LANA MYERS
JUSTICE
171347F.P05
–13–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
REDI-MIX, LLC D/B/A CUSTOM- On Appeal from the 95th Judicial District
CRETE, Appellant Court, Dallas County, Texas
Trial Court Cause No. DC-17-08755.
No. 05-17-01347-CV V. Opinion delivered by Justice Myers.
Justices Lang and Stoddart participating.
OSCAR R. MARTINEZ, Appellee
In accordance with this Court’s opinion of this date, the order of the trial court denying
the motion to compel arbitration is AFFIRMED.
It is ORDERED that appellee OSCAR R. MARTINEZ recover his costs of this appeal
from appellant REDI-MIX, LLC D/B/A CUSTOM-CRETE.
Judgment entered this 25th day of July, 2018.
–14–