author: LEE ANN DAUPHINOT, Justice.

text:
    Perry HOMES, A Joint Venture; Home Owners Multiple Equity, Inc. d/b/a Home/RWC of Texas; and Warranty Underwriters Insurance Company, Appellants v. Robert E. CULL and S. Jane Cull, Appellees.
    No. 2-04-052-CV.
    Court of Appeals of Texas, Fort Worth.
    Aug. 31, 2005.

      Gardere Wynne Sewell L.L.P., Geoffrey H. Bracken and Stacy R. Obenhaus, Houston, Hance Scarborouh Wright Woodward & Weisbart L.L.P., Kent R. Hance, Austin, Johnson, Christopher, Javore & Cochran, Inc., Gary W. Javore, San Antonio, TX, for Appellant.
    Thomas M. Michel, Bourland, Kirkman, Seidler, Jay & Michel, L.L.P., Fort Worth, for Appellee.
    PANEL B: DAUPHINOT, HOLMAN, and WALKER, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

Appellees Robert and Jane Cull (“the Culls”) sued Appellants Perry Homes, A Joint Venture (“Perry Homes”), Home Owners Multiple Equity, Inc. d/b/a Home/ RWC of Texas (“HOME”), and Warranty Underwriters Insurance Company (“WUIC”) for the faulty construction of their home. Approximately a year after filing suit, the Culls filed a motion to compel arbitration. Although Appellants opposed arbitration, the trial court granted the Culls’ motion to compel arbitration. After arbitration was completed, the Culls filed a motion to confirm the arbitration award, and Appellants filed a motion to vacate or alternatively to modify the arbitration award. In its final judgment, the trial court confirmed the arbitration award. In six issues, Appellants now generally argue that the trial court erred by compelling the parties to participate in arbitration, confirming the resulting arbitration award, and denying Appellants’ motion to vacate or modify that award. Because we hold that (1) the Culls did not waive arbitration, (2) the arbitrator was not evidently partial, (3) the arbitrator did not act in manifest disregard of the law, and (4) the Culls did not fail to meet their summary judgment burden, but (5) the trial court did err by failing to modify its award of post-judgment interest that was awarded in addition to the interest in the arbitration award, we affirm the trial court’s judgment as modified.

BACKGROUND FACTS

In 1996, the Culls purchased a newly constructed home from Perry Homes for $233,730 and also purchased a home warranty from HOME and WUIC. After years of struggling with Appellants over repairs required to fix significant structural damage caused by foundation and drainage problems, which lowered the appraised value of the home to $41,000, in 2000, the Culls filed suit against Appellants. HOME and WUIC filed a motion to compel arbitration. The Culls opposed the use of the American Arbitration Association (“AAA”) as unconscionable, but they did not oppose arbitration. The trial court never ruled on this motion. After about a year of discovery, the Culls filed a combined motion to compel arbitration and plea in abatement four days before trial. The trial court granted arbitration.

Appellants filed a petition for writ of mandamus, arguing that the Culls waived the right to arbitration. In April of 2002, this court denied Appellants’ petition, and in May of 2002, the Texas Supreme Court denied Appellants’ petition.

This case then proceeded to arbitration. The parties jointly selected the arbitrator and did not object even after receiving his disclosure that he had litigated residential construction suits for fifteen years, was familiar with two of the experts, and had opposed Perry Homes’s trial counsel’s firm on multiple occasions but had not had any dealings with Perry Homes’s specific counsel. The Culls submitted their statement of claims in arbitration. They claimed negligence, gross negligence, breach of contract and warranty, violations of the DTPA, common law fraud and fraud under the business code, violations of the insurance code, and breach of the duty of good faith. In addition to damages, the Culls requested attorney’s fees and litigation/arbitration expenses including court costs, arbitration costs, and expert fees.

After the arbitrator heard the case, he awarded the Culls over $800,000 in damages, costs, and attorney’s fees. The Culls filed a motion to confirm the arbitration award in the trial court. In response, Appellants filed a motion to vacate or alternatively to modify the arbitration award. Following a hearing, the trial court granted the Culls’ motion and confirmed the arbitration award in its final judgment.

Waiver of the Right to Arbitrate

In their first issue, Appellants argue that the Culls waived their right to arbitrate. We disagree.

Because public policy favors arbitration, the Federal Arbitration Act (“FAA”) imposes a strong presumption against waiver. Waiver of an arbitration right must be intentional. Thus, implying waiver from a party’s actions is appropriate only if the facts demonstrate that the party seeking to enforce arbitration intended to waive its arbitration right. The party seeking to prove waiver bears a “heavy burden of proof,” and any doubts regarding waiver are resolved in favor of arbitration. Courts will not find that a party has waived its right to enforce an arbitration clause by merely taking part in litigation unless it has substantially invoked the judicial process to its opponent’s detriment. Therefore, the test for determining waiver is two-pronged: (1) did the party seeking arbitration substantially invoke the judicial process; and (2) did the opposing party prove that it suffered prejudice as a result?

In this case, the parties participated in written and oral discovery, presented motions to compel discovery, and received orders disposing of those motions. Although Appellants allege that the Culls opposed arbitration early on, the Culls merely opposed the use of the AAA; the Culls did not oppose arbitration as a whole. Furthermore, HOME and WUIC did not obtain a ruling on their early motion to compel arbitration. Additionally, the Culls did not ask the court to make any judicial decisions on the merits of their case, for example, by requesting summary judgment or participating in trial. Thus, this case is not a case in which a party who has tried and failed to obtain a satisfactory result in court then turns to arbitration.

Even if we were to assume without deciding that the Culls had substantially invoked the judicial process, the second prong of the test would defeat Appellants’ claim of waiver. Our review of the record shows that Appellants presented no evidence that they suffered prejudice in their response to the Culls’ motion to compel arbitration or at the hearing on the motion. As the trial court noted at the hearing, Appellants’ claim of prejudice was that they have participated in litigation activities that may or may not have been required by the arbitrator.

Although generally referencing discovery requests and depositions taken, Appellants did not provide any evidence of the work done, time spent, or costs incurred that would not have been done or incurred in anticipation of an arbitration hearing. It was not until after the arbitration had been completed that Appellants, in their motion to vacate or, alternatively, modify the arbitration award and their response to plaintiffs’ motion to confirm arbitration, provided evidence of the work, time, and costs to prove they suffered prejudice. In determining whether the Culls waived arbitration, however, we review only the evidence that was before the trial court when it ruled on the Culls’ motion to compel arbitration, not evidence submitted untimely. Because Appellants failed to provide sufficient evidence of prejudice at the proper time, we hold that the Culls did not waive arbitration. We overrule Appellants’ first issue.

GROUNDS FOR VACATING ARBITRATION AWARD

Arbitration awards can be vacated on limited grounds. The FAA provides four grounds for vacating an arbitration award:

(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

In addition to the four grounds the FAA provides, federal common law allows for vacating an arbitration award when the arbitrator manifestly disregards the law.

A. Evident Partiality

In their third issue, Appellants argue that the trial court erred by refusing to vacate the arbitration award because the arbitrator’s failure to disclose that he represented homeowners in residential construction cases constituted evident partiality. We disagree.

The trial court must vacate an award if a neutral arbitrator exhibits “evident partiality.” A neutral arbitrator selected by the parties or them representatives exhibits evident partiality if he does not disclose facts that might create a reasonable impression of the arbitrator’s partiality to an objective observer. Courts have recognized that parties agree to arbitrate because they prefer a panel with expertise regarding the subject matter of dispute, and this expertise often comes from experience in the field, which may have involved personal dealings with the parties. Information regarding a relationship with a party — such as representation or familial or close social ties — should be disclosed, but a neutral arbitrator need not disclose relationships or connections that are trivial.

In this case, the arbitrator disclosed that he knew a lot of the attorneys in Perry Homes’s trial counsel’s firm, that he had represented clients in which Perry Homes’s trial counsel’s firm represented the opposing party, and that he did not know the attorney in this case. He disclosed that he had litigated residential construction cases for about fifteen years, so “a number of the witnesses [were] familiar to [him] or [he had] heard of them.” He further disclosed that one of the witnesses “did a report on [his] client’s property” and that another witness “did a foundation analysis on [his] client’s home and was being paid by the builder.”

Despite the arbitrator’s statements that he had fifteen years’ experience in the residential construction field, implying that he had represented residential homeowners in these cases, and that Appellant Perry Homes’s trial counsel’s firm had actually litigated against him in previous cases, Appellants allege that because they discovered after arbitration that the arbitrator had represented homeowners in five cases, the arbitrator was evidently partial. We disagree and hold that the arbitrator properly disclosed information that might indicate bias before the arbitration began. Appellants did not object.

Additionally, although Appellants allege that the arbitrator represented homeowners in five residential construction cases, they did not produce any withheld evidence (1) of the total number of cases that the arbitrator handled during his practice of at least fifteen years or the percentage of cases that he handled on behalf of homeowners versus builders, (2) that he knew any of the parties in this case, or (3) that he had an association with anyone or a membership anywhere that would create a reasonable impression of the arbitrator’s partiality to an objective observer. Thus, we hold that the undisclosed information complained about was trivial. We overrule Appellants’ third issue.

B. Manifest DISREGARD of the Law

In their fifth issue, Appellants argue that the arbitrator acted in manifest disregard of the law by awarding the Culls expert witness fees and disregarded the argument that the Culls had waived arbitration. We disagree.

An arbitrator’s interpretation of the law is not subject to review for error unless the arbitrator manifestly disregarded the law in his decision. “Manifest disregard of the law” is a judicially-created ground for vacating arbitration awards. Manifest disregard of the law is more than mere error or misunderstanding with respect to the law. Under this standard, the arbitrator clearly recognizes the applicable law, but chooses to ignore it. “To adopt a less strict standard of judicial review would be to undermine our well-established deference to arbitration as a favored method of settling disputes when agreed to by the parties.” Therefore, the court’s “review for manifest disregard of the law does not open the door to extensive judicial review.” Accordingly, judicial review under this standard is “extremely limited.” The party seeking to vacate an arbitration award bears the burden of demonstrating the arbitration panel acted in manifest disregard of the law.

In this ease, Appellants rely only on the general rule that although the prevailing party will recover all court costs, costs of experts are incidental expenses in preparation for trial and not recoverable. This rule, however, does not apply where a statute or contract provides for recovery of witness fees. While the contracts between the Culls and Appellants do not discuss expert witness fees, Texas law permits recovery of expert witness fees for statutory fraud in real estate claims. Furthermore, the AAA rules authorize the arbitrator to “grant any remedy or relief that the arbitrator deems just and equitable.” Thus, the arbitrator did not act with manifest disregard of the law when he awarded expert fees.

Additionally, because we have already held that the Culls did not waive their right to arbitrate the claims in this case, the arbitrator did not act with manifest disregard of the law by ruling that the Culls did not waive arbitration. Consequently, we overrule Appellants’ fifth issue.

BURDEN OF PROOF

In their fourth issue, Appellants alternatively argue that the Culls failed to meet their summary judgment burden to negate Appellants’ defense of evident partiality. We disagree.

A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. In this case, it was Appellants’ burden to prove their defense, and, although the Culls could have filed a reply to Appellants’ response to their motion to confirm the arbitration award, the Culls were not required to put on evidence to negate Appellants’ defense. As set forth above, Appellants did not conclusively prove that the arbitrator was evidentially partial. We overrule Appellants’ fourth issue.

Modification of the Trial Court’s Judgment

In their sixth issue, Appellants argue that the trial court erred by refusing to modify its judgment to correct errors in the arbitration award that resulted in contradictory deadlines for complying with the injunctive relief, an award of interest above what the arbitrator awarded, an award of post-confirmation attorney’s fees, and an award of costs taxed on parties that the Culls had previously nonsuited.

First, Appellants argue that the award of post-arbitration attorney’s fees exceeded the arbitrator’s authority. We disagree. Although a trial court may not add post-arbitration attorney’s fees to the arbitration award that includes such fees in its final judgment, the arbitrator may award such fees in the arbitration award. Additionally, attorney’s fees are allowed in cases such as this one involving DTPA and fraud in real estate claims. Thus, the trial court did not err by confirming the arbitrator’s award of post-arbitration attorney’s fees in its final judgment.

Second, Appellants argue that the trial court’s judgment should be modified because it awards costs on parties that the Culls previously nonsuited. We disagree. Because Jerald W. Kunkel, P.E., and Jerald W. Kunkel, P.E., Inc., d/b/a Jerald W. Kunkel Consulting Engineers, Inc. had been nonsuited before the final judgment, the trial court’s reference to “defendants” in its final judgment refers to the remaining defendants in this case regardless of the fact that the nonsuited defendants remained in the style of the case. Appellants were the only remaining defendants at the time of the trial court’s judgment, and thus, the trial court’s judgment makes them and only them responsible for the fees.

Third, Appellants allege that the judgment is inconsistent in two respects. The judgment provides that the closing shall take place within sixty days after the date of the judgment, but it also provides that the actions are to be taken and sums paid on or before thirty days from the date of the judgment. Although Appellants have not clearly specified the modification in the dates of the judgment requested, the Culls agree to a modification of the judgment to state that the closing shall take place within sixty days after the date of the final judgment and that all other sums not related to paragraph (a) shall be due thirty days after the date of the final judgment. Because this modification appears to represent Appellants’ requested modification and will resolve any alleged inconsistency in the judgment, we modify the judgment to reflect those changes.

Finally, Appellants argue that the trial court erred by awarding interest in addition to what the arbitrator awarded. Because the trial court’s judgment regarding this additional interest is ambiguous, we agree with Appellants. The trial court's judgment states that “the judgment here rendered shall bear post-judgment interest at the rate of 10% per annum from the date of signing until paid.” This interest could be interpreted to add 10% interest on the interest awarded by the arbitrator, which was “ten percent (10%) per annum from thirty (30) days after the date of this Award until paid.” We find no statutory or case law in support of this modification. Thus, the trial court should not have included this additional interest in its judgment. We therefore further modify the trial court’s judgment to delete “that the Judgment here rendered shall bear post-judgment interest at the rate of 10% per annum from the date of signing until paid” and overrule the remaining arguments Appellants raised in their sixth issue.

Findings op Fact

Alternatively, Appellants argue in their second issue that the trial court erred by failing to enter findings of fact and request that this case be abated to the trial court for entry of findings of fact. According to Rules 296 and 297 of the Texas Rules of Civil Procedure, a trial judge must prepare findings of fact in cases tried in the district court or county court without a jury, that is, where there has been an evidentiary hearing to the court or a bench trial on the merits. When a trial court grants summary judgment relief, however, findings of fact have no place in the proceeding because the summary judgment proceeding has not been “tried” within the scope of Rule 296. Although Appellants argue in this issue that the motion to vacate hearing was an evidentiary hearing requiring findings of fact, they contradictorily argue in their fourth issue that their motion to vacate the arbitration award was their response to the Culls’ motion to confirm the arbitration award, which was a summary judgment proceeding. Our review of the record shows that this hearing was not a bench trial on the merits of the case. The hearing was held in the form of a summary judgment hearing; only arguments were given, no live testimony was given, and the only evidence presented was not offered or admitted at the hearing but was attached to the parties’ motions. Thus, because findings of fact have no place in summary judgment proceedings, we overrule Appellants’ second issue.

Conclusion

Having held that the trial court erred by awarding post-judgment interest in addition to the interest awarded by the arbitrator, we modify the trial court’s judgment by removing the following, “[T]hat the Judgment here rendered shall bear post-judgment interest at the rate of 10% per annum from the date of signing until paid.”

Having held that the trial court’s judgment is ambiguous regarding the time periods by which Appellants must comply with the judgment, we modify the paragraph following paragraph g. of the trial court’s judgment to state, “The action are to be taken and sums are to be paid as set forth in paragraphs b., c., d., e., f., and g., herein, on or before thirty (30) days from the date of this Final Judgment.”

We affirm the trial court’s judgment as modified.

      . In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex.1998) (orig.proceeding); EZ Pawn Corp. v. Mandas, 934 S.W.2d 87, 89 (Tex.1996); Tex. Residential Mortgage, L.P. v. Portman, 152 S.W.3d 861, 863 (Tex.App.-Dallas 2005, no pet.); In re Medallion, Ltd., 70 S.W.3d 284, 288 (Tex.App.-San Antonio 2002, orig. proceeding).

      . EZ Pawn Corp., 934 S.W.2d at 89; Tex. Residential Mortgage, L.P., 152 S.W.3d at 863; In re Medallion, Ltd., 70 S.W.3d at 288.

      . EZ Pawn Corp., 934 S.W.2d at 89; Tex. Residential Mortgage, L.P., 152 S.W.3d at 863; In re Medallion, Ltd., 70 S.W.3d at 288.

      . EZ Pawn Corp., 934 S.W.2d at 90; Tex. Residential Mortgage, L.P., 152 S.W.3d at 863; In re Medallion, Ltd., 70 S.W.3d at 288.

      . In re Bruce Terminix Co., 988 S.W.2d at 704; EZ Pawn Corp., 934 S.W.2d at 89; Tex. Residential Mortgage, L.P., 152 S.W.3d at 863; In re Medallion, Ltd., 70 S.W.3d at 288.

      . Tex. Residential Mortgage, L.P., 152 S.W.3d at 863; In re Medallion, Ltd., 70 S.W.3d at 288.

      . See In re Bruce Terminix Co., 988 S.W.2d at 704.

      . See id.

      . See McClure v. Denham, 162 S.W.3d 346, 349 n. 2 (Tex.App.-Fort Worth 2005, no pet.).

      . 9 U.S.C. § 10(a) (2002).

      . Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 252 (Tex.App.-Houston [14th. Dist.] 2003, pet. denied); Int'l Bank of Commerce-Brownsville v. Int’l Energy Dev. Corp., 981 S.W.2d 38, 48 (Tex.App.-Corpus Christi 1998, pet. denied), cert. denied, 528 U.S. 1137, 120 S.Ct. 982, 145 L.Ed.2d 932 (2000); Bull HN Info. Sys., Inc. v. Hutson, 229 F.3d 321, 331 (1st Cir.2000).

      . Tex. Commerce Bank v. Universal Technical Inst. of Tex., Inc., 985 S.W.2d 678, 680 (Tex. App.-Houston [1st Dist.] 1999, pet. dism’d w.o.j.).

      . Burlington N. R.R. Co. v. TUCO, Inc., 960 S.W.2d 629, 636 (Tex.1997); Tex. Commerce Bank, 985 S.W.2d at 680.

      . See, e.g., TUCO, 960 S.W.2d at 633.

      . Id. at 637.

      . See Houston Vill. Builders, Inc. v. Falbaum, 105 S.W.3d 28, 35 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (holding that undisclosed representation of an association that the arbitrator disclosed he was a member of and the association will be affected by the outcome of the case is evident partiality); Tex. Commerce Bank, 985 S.W.2d at 681 (holding that undisclosed representation of a party is evident partiality).

      . Int’l Bank of Commerce-Brownsville, 981 S.W.2d at 48.

      . Tanox, 105 S.W.3d at 252; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jaros, 70 F.3d 418, 421 (6th Cir.1995).

      . Tanox, 105 S.W.3d at 252; LaPrade v. Kidder, Peabody & Co., Inc., 246 F.3d 702, 706 (D.C.Cir.2001); Jaros, 70 F.3d at 421; Health Servs. Mgmt. Corp. v. Hughes, 975 F.2d 1253, 1267 (7th Cir.1992); Carte Blanche (Singapore) Pte., Ltd. v. Carte Blanche Int'l, Ltd., 888 F.2d 260, 265 (2d Cir.1989).

      . Tanox, 105 S.W.3d at 252; Wonderland Greyhound Park, Inc. v. Autotote Sys., Inc., 274 F.3d 34, 36 (1st Cir.2001); Mo. River Servs., Inc. v. Omaha Tribe of Neb., 267 F.3d 848, 855 (8th Cir.2001), cert. denied, 535 U.S. 1053, 122 S.Ct. 1909, 152 L.Ed.2d 820 (2002); Brown v. ITT Consumer Fin. Corp., 211 F.3d 1217, 1223 (11th Cir.2000); Williams v. Cigna Fin. Advisors, Inc., 197 F.3d 752, 762 (5th Cir.1999), cert. denied, 529 U.S. 1099, 120 S.Ct. 1833, 146 L.Ed.2d 777 (2000); Jaros, 70 F.3d at 421; Health Servs. Mgmt. Corp., 975 F.2d at 1267.

      . Tanox, 105 S.W.3d at 253; Carte Blanche, 888 F.2d at 265.

      . Tanox, 105 S.W.3d at 253; Dawahare v. Spencer, 210 F.3d 666, 669 (6th Cir.), cert. denied, 531 U.S. 878, 121 S.Ct. 187, 148 L.Ed.2d 130 (2000).

      . Tanox, 105 S.W.3d at 253; Carte Blanche, 888 F.2d at 265; see also Jaros, 70 F.3d at 421 (stating manifest disregard of law is a "very narrow standard of review”).

      . Tanox, 105 S.W.3d at 253; LaPrade, 246 F.3d at 706; Brown, 211 F.3d at 1223.

      . Richards v. Mena, 907 S.W.2d 566, 571 (Tex.App.-Corpus Christi 1995, writ dism’d by agmt).

      . See Thomas v. Prudential Sec., Inc., 921 S.W.2d 847, 849 (Tex.App.-Austin 1996, no writ).

      . Tex Bus. & Com.Code Ann. § 27.01(e) (Vernon 2002) ("Any person who violates the provisions of this section shall be liable to the person defrauded for reasonable and necessary attorney’s fees, expert witness fees, costs for copies of depositions, and costs of court.”).

      . American Arbitration Association, Supplementary Procedures for Residential Construction Disputes, SR-9(a) (2003).

      . Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999).

      . Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996).

      . Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 436 (Tex.App.-Dallas 2004, pet. denied); Int'l Bank of Commerce-Brownsville, 981 S.W.2d at 54.

      . See Tex. Bus. & ComCode Ann. §§ 17.50(d), 27.01(e) (Vernon 2002).

      . See 9 U.S.C.A. § 11(c); TexR.App. P. 43.2(b).

      . See 9 U.S.C.A. § 11(c); see also Int'l Bank of Commerce-Brownsville, 981 S.W.2d at 54.

      . Tex.R. Civ. P. 296, 297; In re J.I.T.P., 99 S.W.3d 841, 848 (Tex.App.-Houston [14th Dist.] 2003, no pet.); Chavez v. Hous. Auth. of City of El Paso, 897 S.W.2d 523, 525 (Tex.App.-El Paso 1995, writ denied), cert. denied, 517 U.S. 1188, 116 S.Ct. 1674, 134 L.Ed.2d 778 (1996); Zimmerman v. Robinson, 862 S.W.2d 162, 164 (Tex.App.-Amarillo 1993, no writ.).

      . Chavez, 897 S.W.2d at 525-26 (citing Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex.1994)).

      . Linwood, 885 S.W.2d at 103.


source: Caselaw Access Project

author: ANNE GARDNER, Justice.

license: Public Domain

text:
    Cecil Ray HARRIS, Appellant v. The STATE of Texas, State.
    No. 2-04-103-CR.
    Court of Appeals of Texas, Fort Worth.
    Aug. 31, 2005.

      Lars Robert Isaacson, Carrollton, TX, for Appellant.
    Bruce Isaacks, Criminal Dist. Atty., Kathleen Walsh and Catherine Luft, Earl Dobson, Ryan Calvert, Asst. Dist. Attys., for Denton County, Denton, TX, for Appel-lee.
    PANEL B: DAUPHINOT, HOLMAN, and GARDNER, JJ.
   OPINION

ANNE GARDNER, Justice.

INTRODUCTION

Appellant, Cecil Ray Harris, pleaded not guilty to possession of a controlled substance, cocaine, of less than one gram. A jury subsequently found Appellant guilty, and the trial court sentenced him to eighteen months’ confinement. In three points, Appellant argues that the evidence was legally and factually insufficient and that the trial court erred by denying his motion to suppress. We affirm.

Legal and Factual Sufficiency

In his first two points, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction.

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App.2004).

This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code CRim. PROC. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000). The standard of review is the same for direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App.2001); Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App.1999).

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. “This standard acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.” Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id.

In performing a factual sufficiency review, we are to give deference to the fact finder’s determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We may not substitute our judgment for that of the fact finder’s. Zuniga, 144 S.W.3d at 482.

A proper factual sufficiency review requires an examination of all the evidence. Id. at 484, 486-87. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

On April 19, 2003, at approximately 11:40 p.m., Officer Samuel Moseley of the Denton Police Department observed a vehicle stopped at a stop sign. Officer Moseley then observed the vehicle turn without using a turn signal. Officer Moseley stated that as he began to get behind the vehicle to catch up to it, the vehicle sped up. Officer Moseley stated that based on his training and experience, he believed that this indicated that someone was “trying to put distance between me and them.” As Officer Moseley caught up to the vehicle, he observed that the rear license plate light was not on. Officer Moseley initiated a traffic stop on the vehicle for the traffic violations that he observed, and the vehicle came to a complete stop. Officer Moseley then observed the driver of the vehicle throw what he described as a white piece of plastic or piece of paper, out of the driver’s side window. Officer Moseley testified that the item thrown out of the vehicle “had the appearance of what crack cocaine is sealed in when they sell it.” Officer Moseley stated that he was unable to find the item that was thrown out of the vehicle.

Officer Moseley made contact with the driver, whom he identified in court as Appellant. A female passenger was also in the vehicle. Officer Moseley asked Appellant what he had thrown out of the vehicle, and Appellant replied “that he hadn’t thrown anything out the window.” At that point, Officer Moseley asked Appellant to exit the vehicle and placed Appellant in handcuffs for Officer Moseley’s safety. Officer Moseley took Appellant to the rear of Appellant’s vehicle and began to question him.

Approximately one to two minutes later, Officer Chris Plank arrived and contacted the female passenger through the driver’s side window. Officer Plank stated that as he contacted the passenger, he shined his flashlight into the vehicle and observed what he believed to be a piece of crack cocaine in plain view on the driver’s seat. Officer Plank stated that the crack cocaine was in the back of the seat near the crease where the seat and back rest are joined. Officer Plank called Officer Moseley to the vehicle and pointed out the piece of crack cocaine on the driver’s seat. At that point Appellant was placed under arrest for possession of a controlled substance. After Appellant was arrested, he told Officer Moseley that he had a crack pipe in his front pocket, which was recovered during a search incident to his arrest.

Officer Moseley testified that he did not initially see the crack cocaine on the seat when Appellant exited the vehicle. Officer Moseley stated that where the cocaine was located in the seat, he would not have seen it initially because he was focused on Appellant as he exited the vehicle. Officer Moseley stated that after Appellant exited the vehicle, he could not observe the interi- or of the vehicle from his vantage point at the trunk of the vehicle. He also stated that although he tried to watch the passenger, there were times that he could not observe what the passenger was doing inside the vehicle, and it was possible that she could have placed the cocaine on the driver’s seat.

In order to establish the unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband and (2) that the accused knew that the matter possessed was contraband. Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App.1981); Guy v. State, 160 S.W.3d 606, 612 (Tex.App.-Fort Worth 2005, pet. filed). It is well established that drug possession need not be exclusive, and that an individual can possess drugs jointly with others. State v. Derrow, 981 S.W.2d 776, 779 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd).

When the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Deshong, 625 S.W.2d at 329. The factors to be considered in establishing an affirmative link include the following: (1) defendant’s presence when the search was executed; (2) whether the contraband was in plain view; (3) defendant’s proximity to and the accessibility of the narcotic; (4) whether defendant was under the influence of narcotics when arrested; (5) whether defendant possessed other contraband when arrested; (6) whether defendant made incriminating statements when arrested; (7) whether defendant attempted to flee; (8) whether defendant made furtive gestures; (9) the presence of odor of the contraband; (10) the presence of other contraband or drug paraphernalia; (11) defendant’s ownership or right to possession of the place where the controlled substance was found; and (12) whether the place the drugs were found was enclosed. Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); Jones v. State, 963 S.W.2d 826, 830 (Tex.App.-Texarkana 1998, pet. ref'd); Chavez v. State, 769 S.W.2d 284, 288-89 (Tex.App.-Houston [1st Dist.] 1989, pet. ref'd). The link, however, need not be so strong that it excludes every other reasonable hypothesis except the defendant’s guilt. Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App.1995); Hudson v. State, 128 S.W.3d 367, 374 (Tex.App.-Texarkana 2004, no pet.). It is not the number of affirmative links present that is important, but rather the “logical force” that they create to prove that the defendant committed the crime. Nhem v. State, 129 S.W.3d 696, 699-700 (Tex.App.Houston [1st Dist.] 2004, no pet.).

In the present case, Officer Moseley observed Appellant, the driver of the vehicle, throwing what appeared to be a crack cocaine wrapper out of the driver’s side window upon being stopped. However, Appellant denied throwing anything out of the window when confronted by Officer Moseley. Further, Officer Plank found the crack cocaine on the driver’s seat, where Appellant had been sitting before exiting the vehicle. Finally, Officer Moseley found a crack pipe in Appellant’s pocket. Although Appellant contends that there is evidence that the crack cocaine was placed in Appellant’s seat after he exited the vehicle, that is a fact issue that is best left to the jury’s determination, as they were in the best position to judge the credibility of the witnesses and to resolve any conflicts in the evidence. Zuniga, 144 S.W.3d at 481.

Based on the totality of the circumstances, we conclude that there were sufficient affirmative links to establish that Appellant was in possession of cocaine. Therefore, we hold that after considering all the evidence introduced at trial in the light most favorable to the verdict, there was sufficient evidence for the jury to find the essential elements of the crime beyond a reasonable doubt. We further hold that the evidence, when viewed in a neutral light, was sufficient to allow the jury to find guilt beyond a reasonable doubt. Thus, we hold that the evidence was both legally and factually sufficient. We overrule Appellant’s first and second points.

Motion to Suppress

In his third point, Appellant argues that the trial court erred by denying his motion to suppress. Specifically, Appellant contends that the trial court erred because the evidence developed at the hearing on the motion to suppress showed that the evidence was insufficient to affirmatively link Appellant to the cocaine.

The court of criminal appeals has recently concluded that the statutes authorizing pre-trial proceedings do not contemplate a “mini-trial” on the sufficiency of the evidence to support an element of the offense. See Woods v. State, 153 S.W.3d 413, 415 (Tex.Crim.App.2005); see also State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex.Crim.App.1995) (op. on reh’g) (finding that Judge Clinton’s dissenting opinion on original submission was correct in holding that “in a pre-trial setting, there is neither Constitutional nor statutory authority for an accused to raise and for a trial court to determine sufficiency of evidence to support or defeat an alleged element of an offense”). The purpose of a pre-trial motion is to address preliminary matters, not the merits of the case itself. Woods, 153 S.W.3d at 415. Preliminary matters are those issues that can be determined before there is a trial on the general issue of the case. Id.

Therefore, because Appellant’s challenge to the sufficiency of the evidence was improperly raised in his motion to suppress, we hold that the trial court did not err by denying Appellant’s motion to suppress. We overrule Appellant’s third point.

Conclusion

Having overruled all of Appellant’s points, we affirm the trial court’s judgment.


author: BOB McCOY, Justice.

text:
    Paul BROWN, individually and on Behalf of all Other Persons Similarly Situated, Appellant v. SABRE, INC. and Sabre Holdings Corp., Delaware Corporations, Appellees.
    No. 2-04-214-CV.
    Court of Appeals of Texas, Fort Worth.
    Aug. 31, 2005.

      Richardson, Stoops, Richardson & Ward, Mark L. Collier, and Sean E. Manning, Tulsa, OK, for Appellant.
    Kelly, Hart & Hallman, P.C., Dee J. Kelly, Jr., and Russell D. Cawyer, Fort Worth, TX, for Appellee.
    Panel B: DAUPHINOT, WALKER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

I. Introduction

Appellant Paul Brown, individually and on behalf of all other persons similarly situated (“Brown”), appeals the trial court’s grant of Defendants’ Second Motion for Summary Judgment and in a single issue globally asserts that the trial court erred by granting summary judgment. We affirm.

II. Background

Brown was an employee of Sabre, Inc. when his employer sold part of its operations to Electronic Data Systems Corporation (“EDS”) in 2001. It is undisputed that Brown was an at-will employee. All 4,200 Sabre employees whose jobs were to be eliminated were offered positions with EDS. Brown and the others affected were given the option to accept a position with EDS, which was referred to as being “transitioned” to EDS, or to find other employment. On March 29, 2001, Brown accepted a position to begin work for EDS in July 2001, but he continued to work at Sabre in the interim.

Sabre’s vacation policy was that vacation that was earned during a year could be taken only in the following year. For the year* 2000, Brown was credited with twenty-five vacation days to be taken in 2001. Generally, the company expected employees to use their entire vacation and could not carry over days to the next year. Employees were not entitled to payment for unused vacation days. Another vacation policy stated that “[i]f you leave the company, you will be paid for any earned but unused vacation days, as long as you provide two weeks[’] resignation notice.” Brown was aware of the policy but did not resign or give two weeks’ resignation notice. In response to confusion on the part of some employees regarding how their accrued vacation to be taken in the year 2001 would be treated as a result of the EDS transition, on May 23, 2001 Sabre stated in a memo to “All Employees Transitioning to EDS” that “[t]he purpose of this memorandum is to assure you that Sabre is keeping you whole in respect to your Sabre vacation — that is part of the contract between Sabre and EDS.”

On that same day, two months after Brown had accepted employment with EDS but while he was still working at Sabre, Sabre allegedly changed the vacation policy by stating that employees would not be paid for any vacation that would be honored or assumed by a “Successor or Affiliate,” that is, EDS, “except as required by law.” Shortly thereafter, he received his final paycheck from Sabre, which included payment for two and one-half weeks of vacation that had accrued in 2001 for use in 2002. However, he discovered that he did not get paid for the sixteen days that represented the amount of accrued vacation that he had earned in 2000 to be taken in 2001 but which he had not yet taken prior to his transition to EDS.

Although disputed by Sabre, Brown asserts that when he left Sabre and began working for EDS, EDS did not offer him his Sabre accrued vacation time or pay him for the time equivalent of the earned vacation time, as had been represented by Sabre to be a part of the Sabre/EDS contract. As a result, he filed suit against Sabre under a breach of contract theory. Prior to filing suit, Brown contacted the U.S. Department of Labor to inquire about his right to receive vacation pay for accrued but unused vacation but was told that the Department does not get involved in such matters. He also filed a complaint with the Texas Workforce Commission, seeking payment for accrued vacation time, but did not appeal from its determination that

[t]he law provides that claims for [vacation] can be enforced as unpaid wages only when the amounts are owed under a written agreement with the employer or under a written policy of the employer. The employer’s written policy or written agreement did not provide for cash payments for unused leave upon separation from employment.

After initiation of the lawsuit and relevant discovery, Sabre filed a traditional motion for summary judgment, styled “Defendant’s Second Motion for Summary Judgment and Supporting Brief,” on the basis that as an at-will employee, Brown had no contract with Sabre as a matter of law, and thus there could be no breach of contract. Simply put, no contract — no breach. This appeal resulted.

III. Standard of Review

In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Southwestern Elec. Power Co., 73 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. Great Am., 391 S.W.2d at 47.

In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the non-movant is accepted as true. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995). Evidence that favors the movant’s position will not be considered unless it is uncontroverted. Great Am., 391 S.W.2d at 47. A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiffs cause of action cannot be established. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999). The defendant as movant must present the summary judgment evidence that negates an element of the plaintiffs claim. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact with regard to the element challenged by the defendant. Id.

IV. At-Will Employment

A. Historical Development

A version of the employment at-will doctrine can be traced back at least as far as fifteenth century England and the Statute of Laborers Act, which provided that if any employee was hired for an indefinite period of time, he was presumed to be hired for one year and could not be terminated during that year except for reasonable cause. RichaRD R. CaRson, Texas Employment Law § 201 (1993). The doctrine emerged in the United States in Hathaway v. Bennett, 10 N.Y. 108 (1854), in which a New York court found in favor of an employer who fired an employee without advance notice. “Wood’s Rule,” attributed to Professor Horus Wood, is also often cited as an original source of the employment at-will doctrine. In his 1877 paper, Treatise on the Law of Master and Servant, he stated what would later be known as Wood’s Rule:

When the continuance of the term of service by the contract of hiring is in any manner left discretionary with either party, either may put an end thereto at any time.... With us the rule is inflexible that a general or indefinite hiring is prima facie a hiring at will, and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof.

H.G. Wood, Theatise on the Law of MasteR & Servant § 272 (1877).

The genesis of the doctrine in Texas can be traced to the Texas Supreme Court ruling in East Line and Red River Railroad Company v. Scott, wherein the court, relying on various authorities including Wood’s Rule, stated that “[i]t is very generally, if not uniformly held, when the term of service is left to the discretion of either party, or the term left indefinite, or determinable by either party, that either may put an end to it at will, and so without cause.” 72 Tex. 70, 10 S.W. 99, 102 (Tex.1888). This general doctrine is still applicable today. “The long-standing rule in Texas provides for employment at will, terminable at any time by either party, with or without cause, absent an express agreement to the contrary.” Fed. Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex.1993). Any modification of an employee’s at-will employment status must be based on expressed, rather than implied, agreements that are clear and specific. Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 503 (Tex.1998). Further, it is the employee’s burden to prove a contract existed with the employer. See Massey v. Houston Baptist Univ., 902 S.W.2d 81, 83 (Tex.App.-Houston [1st Dist.] 1995, writ denied).

B. Employee Handbooks/Policy Manuals and Disclaimers

The long-standing rule in Texas is that an employee without a written employment contract is an employee-at-will, and the employment relationship is terminable at any time by either party, with or without cause.... In numerous cases, discharged employees have attempted to recover for breach of contract by alleging that their employers’ personnel manuals contained enforceable promises altering the at-will relationship .... Texas courts have generally rejected this theory, particularly where a specific disclaimer in the employee handbook warns the employee that the manual is intended to provide guidelines only, and does not create contractual rights.

Vida v. El Paso Employees’ Fed. Credit Union, 885 S.W.2d 177, 180-81 (Tex.App.-El Paso 1994, no writ). As a general rule employee handbooks and policy manuals constitute general guidelines in the employer/employee relationship and do not create implied contracts between the employer and employee. Ortiz v. United States Auto. Ass’n, No. 04-99-00345-CV, slip op. at 3, 2000 WL 1727319, at *2-3, 2000 Tex.App. LEXIS 7898, at *6-7, 10 (Tex.App.-San Antonio Nov.2, 2000, no pet.) (not designated for publication) (noting that an employee manual did not create an employment contract when there was nothing in the manual that limited the employer’s right to terminate employment); Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 176 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (holding no implied contract when employee handbook did not limit employer’s right to terminate employment); Day & Zimmermann, Inc. v. Hatridge, 831 S.W.2d 65, 69 (Tex.App.-Texarkana 1992, writ denied) (stating that statement of company policy, without an express agreement, did not create contractual rights in employment); Salazar v. Amigos Del Valle, Inc., 754 S.W.2d 410, 413 (Tex.App.-Corpus Christi 1988, no writ) (finding policies and procedures manual did not raise a fact issue as to whether an implied agreement existed); Vallone v. Agip Petroleum Co., 705 S.W.2d 757, 759 (Tex.App.-Houston [1st Dist.] 1986, writ ref d n.r.e.) (holding that if the only agreement alleged is an implied agreement based on a policy manual, there is no alleged basis upon which the term of employment could be anything other than at-will); Reynolds Mfg. Co. v. Mendoza, 644 S.W.2d 536, 539 (Tex.App.-Corpus Christi 1982, no -writ) (stating that handbook was a general guideline that presented no evidence of any express agreement limiting the discharge of employees); see also Totman v. Control Data Corp., 707 S.W.2d 739, 744 (Tex.App.-Fort Worth 1986, no writ) (finding the mere presence of an employee handbook, without introducing it as evidence, does not change nature of an at-will employment relationship). There is a “generalized rejection [by Texas courts] of the claim that employment manuals issued unilaterally by an employer can per se constitute written employment contracts and create specific limitations which take the cases out of the at-will doctrine.” Aiello v. United Air Lines, Inc., 818 F.2d 1196, 1198 (5th Cir.1987).

This is particularly true if the handbook contains a disclaimer. “A disclaimer in an employee handbook ... negates any implication that a personnel procedures manual places a restriction on the employment-at-will relationship.” Dutschmann, 846 S.W.2d at 283; see Werden v. Nueces County Hosp. Dist, 28 S.W.3d 649, 651 (Tex.App.-Corpus Christi 2000, no pet.) (concluding that the disclaimer clearly did not express an intent to create a binding contract).

Nevertheless, one sister court has held that an employee handbook can become part of an oral employee contract and limit the employer’s right to discharge an employee. Wilhite v. H.E. Butt Co., 812 S.W.2d 1, 6 (Tex.App.-Corpus Christi 1991, no writ), overruled on other grounds by Cain v. Hearst Corp., 878 S.W.2d 577 (Tex.1994). However, that case erroneously cites as authority Berry v. Doctor’s Health Facilities, 715 S.W.2d 60, 61 (Tex.App.-Dallas 1986, no writ). The Berry case does not stand for that proposition and does not make that statement, but rather holds that “the record is devoid of any facts that would elevate the employee handbook beyond its self-proclaimed status of a revocable general guideline,” emphasizing the disclaimer that indicated that the handbook did not constitute the contract. Id. at 61-62. Even so, the Wilhite court goes on to note that “[w]hen the handbook contains an express disclaimer that the handbook in no way constitutes an employment contract, it does not....” 812 S.W.2d at 6.

Nevertheless, under very limited circumstances, employee handbooks or policy manuals have been held by some courts to contractually modify the at-will employment relationship or form otherwise enforceable promises. See Paniagua v. City of Galveston, Tex., 995 F.2d 1310, 1314-15 (5th Cir.1993) (holding that a magistrate’s finding was “not clearly erroneous” when he determined the City of Galveston Personnel Rules and Regulations, which stated that employees on stand-by would be paid in a certain manner, required payment for stand-by time to Mr. Paniagua); Aiello, 818 F.2d at 1198-1201 (finding that there existed a written or oral agreement, or written agreement with oral additions, which contained a specific contract with binding disciplinary standards and disciplinary procedures, that is, a manual contained a specific, detailed employer obligation to discharge only for just cause); Vida, 885 S.W.2d at 181 (noting that the at-will relationship may be modified when a handbook, without a disclaimer, “specifically and expressly curtails the employer’s right to terminate the employee ... restricts] the at-will relationship in a meaningful and special way [and] contain[s] a specific contractual term altering at-will status”); see also Stiver v. Tex. Instruments, Inc., 750 S.W.2d 843, 846 (Tex.App.-Houston [14th Dist.] 1988, no writ); Benoit v. Polysar Gulf Coast, Inc., 728 S.W.2d 403, 406 (Tex.App.-Beaumont 1987, writ ref'd n.r.e.), (adopting the “meaningful and special way” approach). Indeed, this court has held that “[although an employee handbook is not a contract that will alter the at-will nature of the employment relationship, a provision in an employee manual may create enforceable rights if the provision does not alter the at-will nature of the employer relationship.” Burlington N. R.R. Co. v. Akpan, 943 S.W.2d 48, 52 (Tex.App.-Fort Worth 1996, no writ) (holding that a written policy invoking arbitration for certain labor disputes would be enforced, noting that Texas courts strongly favor arbitration and courts usually indulge every reasonable presumption in favor of arbitration) (citing E-Z Mart Stores, Inc. v. Hale, 888 S.W.2d 695, 699 (Tex.App.-Texarkana 1994, writ denied)). It is noteworthy that this case is silent on the factual issue of employee handbooks or manuals, as well as disclaimers.

In E-Z Mart, the court found an implied-in-fact contract existed through the posting of a notice stating in part “all E-Z Mart employees are covered by Workmen’s Compensation Ins. through EZ Mart, Inc. Self Insurance Program. The Company has assumed the role of your Workmen’s Comp. Insurance Company.” 883 S.W.2d at 699. The court noted that a contract implied-in-fact arises from the acts and conduct of the parties, and it was implied from the facts and circumstances that there was a mutual intention to contract. Id. The employee continued to work for E-Z Mart after the posting of the notice, and the court found that the benefit of the service to E-Z Mart constituted her consideration, the program being another form of compensation for her services. Id. Hence the court found that, under those particular circumstances, there was a contractual obligation outside of the employment at-will status of the employee. Id. Further, even outside of the employee manual, “[a]t-will employees may contract with their employers on any matter except those which would limit the ability of either employer or employee to terminate the employment at will.” Light v. Centel Cellular Co. of Tex., 883 S.W.2d 642, 644 (Tex.1994).

V. Vacation Pay

Not surprisingly, the issue of vacation pay has been litigated previously, apparently originating in 1968 in the case of Interstate Hosts, Inc. v. Thompson, 435 S.W.2d 957, 958-59 (Tex.Civ.App.-Dallas 1968, no writ).

While the question presented appears to be one of first impression in Texas, its resolution seems quite simple. Any vested interest or right acquired concerning vacation pay must be determined from the terms of the contract of employment, either expressed or implied. [Here] there was no written contract of employment ... [and we find] no basis in law or in fact for the recovery of the vacation rights.

Id. at 958. One sister court has determined that an alleged contract to pay for unused vacation time which stated that the plan was voluntary and “may be terminated or modified at any time” did not create a contractual obligation to pay for unused vacation, noting cases holding that no contract was formed where an employer retained the right to amend the handbook, and a handbook that could be unilaterally amended or withdrawn did not constitute a contract. Ryan v. Superior Oil Co., 813 S.W.2d 594, 596 (Tex.App.-Houston [14th Dist.] 1991, writ denied). Also in the case of Chester v. Jones, the court found that if an employee had the ability to take vacation prior to being discharged but did not do so, in the absence of contractual language showing intent to pay a discharged associate for unused vacation time, such payment was unnecessary. 386 S.W.2d 544 (Tex.Civ.App.-Tyler 1965, no writ), cause dism’d, 391 S.W.2d 722 (Tex.1965). But see Hamby Co. v. Palmer; 631 S.W.2d 589, 590-91 (Tex.App.-Amarillo 1982, no writ) (upholding the employee’s right to payment where a discharged employee was told he would be paid for accrued but unused vacation time, and the company policy manual confirmed the oral statement but was silent in the event the employee was terminated).

VI. Brown’s Theory of Recovery

In Plaintiffs Original Petition, the live pleading at the time of filing of Defendant’s Second Motion for Summary Judgment, plaintiffs sole cause of action was for breach of contract. Specifically, Brown asserted that “[wjhen Plaintiff and Class Members were transitioned from Sabre to EDS pursuant to the EDS/Sabre acquisition, Sabre refused to pay them [in 2001] for the accrued unused vacation they earned in 2000 and such refusal constitutes a breach of contract.” Brown’s argument is succinctly articulated in its briefing to this court: “Sabre, in its employee handbook, had promised Brown that he had earned the vacation and would be paid for it upon his leaving the company. Sabre breached that promise and did not pay Brown for the vacation hours that he had earned prior to the year 2001.” In order for Brown to prevail on his claim for breach of contract, he must demonstrate that a binding contract existed, that it was breached by Sabre, and that he suffered damages caused by the breach, Ryan, 813 S.W.2d at 596 As articulated by Sabre in its second motion for summary judgment, “[t]he sole issue before this Court on the instant Motion is whether a valid contract exists between Plaintiff [Brown] and Sabre for the vacation benefits Plaintiff allegedly ‘earned’ in 2000.”

The elements required for the formation of a valid contract are well known. They include an offer, an acceptance, a meeting of the minds, each party’s conceding to the terms, and an execution and delivery of the contract with the intent that it be mutual and binding. Prime Prods. Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). Therefore, we will examine the employee handbook and surrounding circumstances and determine if a valid contract existed between Sabre and Brown regarding Sabre’s vacation policy and vacation pay.

VII. Analysis

Lest we lose sight of the mountain while traversing the forest of history and legal development, the macroscopic view of this case is that of an employee who does not have a written employment agreement; who relies on an employee manual that Texas law disfavors as forming contractual obligations, particularly when, as here, a specific disclaimer is involved; and who relies on a single memorandum which he says changed a policy — a policy that could be amended by the very manual on which he relies.

Looking to the facts of this case, Sabre’s employee handbook contained the following disclaimer:

These policies apply to all employees of Sabre. The company reserves the right to alter, amend, modify!,] or terminate these policies at any time in its sole discretion. This Guide does not guarantee continued employment, nor does it represent an employment contract, express or implied.
Employment at Sabre is considered to be “employment-at-will.” This means that either party may terminate the relationship at any time, with or without notice. Only the Chief Executive Officer (CEO) of Sabre has any authority to enter any agreement for any specified period of time, or to make any agreement contrary to this policy.

This disclaimer demonstrates Sabre’s clear intent not to create any binding contractual rights through its employee handbook. Werden, 28 S.W.3d at 651 (citing Gamble v. Gregg County, 932 S.W.2d 253, 255 (Tex.App.-Texarkana 1996, no writ)). As discussed above, most Texas courts have held that if there is an “explicit disclaimer” in a policy or manual of an at-will employee, no contract is formed. Dutschmann, 846 S.W.2d at 283; Werden, 28 S.W.3d at 649. Brown argues, in an attempt to distinguish his case from the applicable case law, that the vacation policy contained in the handbook was not voluntary and expressly provided that vacation is “earned” monthly and “credited” annually. This, however, ignores the undisputed fact that the disclaimer applied to the handbook as a whole, and therefore all of the vacation policies were voluntary and could be altered, amended, modified, or terminated by Sabre at any time. It also ignores the fact that the specific issue of payment for unused time is a policy decision on how to pay, not whether to pay. Brown earned his vacation time; he did not “earn” the right to be paid for unused vacation time if he resigned (which he did not). This is a policy which could be, and was, modified by Sabre. Brown also argues that the Memorandum to Transitioning Employees confirmed Sabre’s obligation to pay accrued vacation. Even when viewing this memorandum favorably to Brown, the vacation policy remained voluntary, and no breach occurred when Sabre did not pay Brown for the unused accrued vacation. See Ryan, 813 S.W.2d at 596 (stating that letters and memoranda did not create a binding contract or modify a vacation plan’s voluntary nature). Any contract existed between Sabre and EDS, not between Sabre and Brown. The memorandum was merely explanatory and did not modify the voluntary nature of the policy. Id. We hold that no contract existed between Sabre and Brown, and accordingly, we overrule Brown’s single issue.

VIII. Conclusion

Having overruled Brown’s single issue, we affirm the judgment of the trial court.

DAUPHINOT, J. concurs without opinion.


author: JOHN CAYCE, Chief Justice.

text:
    Daniel KANE, Appellant v. The STATE of Texas, State.
    No. 2-03-488-CR.
    Court of Appeals of Texas, Fort Worth.
    Sept. 1, 2005.

      James H. Shaw, Fort Worth, for Appellant.
    Tim Curry, Criminal District Atty., Charles M. Mallín, Asst. Criminal District Atty., Chief of the Appellate Section, Debra Ann Windsor and Charles Branden-berg, Asst. Criminal District Attys., Fort Worth, for State.
    Panel A: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.
   OPINION

JOHN CAYCE, Chief Justice.

Appellant Daniel Kane appeals his conviction for possession with intent to deliver 400 grams or more of methamphetamine. We affirm.

Appellant began living in room 322 at the Suburban Lodge in Arlington on October 27, 2001. On December 22, 2001, appellant informed the motel that his rent payment would be late. Two days later, when appellant still had not paid his rent, the assistant manager of the motel sent a maintenance employee to verify whether appellant had moved out and to change the lock on appellant’s room. When the maintenance employee entered appellant’s room, he found marijuana under the bed sheets and saw a digital scale on the bedside table. He reported his discovery to the assistant manager, who called the police after confirming the report.

The police obtained a search warrant based on the information conveyed to them by the maintenance employee and the assistant manager. The search warrant expressly authorized the police to seize “drug paraphernalia and a usable quantity of marijuana.” While executing the warrant, the police found marijuana, guns, a box of plastic sandwich bags, paperwork associated with appellant, “dope notes,” and a lock box containing methamphetamine.

Appellant returned to the motel while the search was underway and went to the motel office to request a new card key, where he was detained by the police. Before arresting appellant or reading him his rights, a police officer asked him if he was staying in room 322, and appellant replied that he was.

Appellant was arrested and charged with possession with intent to deliver 400 grams or more of methamphetamine. A jury found him guilty of the charged offense, and the trial court sentenced him to thirty-five years’ incarceration.

In his first point, appellant contends that the trial court erred in admitting evidence obtained under an invalid search warrant. He argues that the search warrant was invalid under article 38.23 of the code of criminal procedure because it was procured by information obtained in violation of his constitutional right to privacy and criminal trespass laws. The facts relating to the discovery of the marijuana are undisputed; therefore, we review this legal issue de novo. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Harrison v. State, 144 S.W.3d 82, 85-86 (Tex.App.-Fort Worth 2004, pet. granted).

The Fourth Amendment’s prohibition against unreasonable searches and seizures does not apply to the actions of private individuals, such as the motel’s maintenance employee or the assistant manager in this case. See United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984) (the Fourth Amendment is “wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official”); Dawson v. State, 106 S.W.3d 388, 391 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (“the Fourth Amendment proscribes only governmental action, not action by a private individual who is not acting as an agent of the government or with the knowledge and participation of a government official”).

Furthermore, the information used to procure the search warrant was not obtained in violation of the criminal trespass statute. A person commits criminal trespass when he enters or remains on the property of another without consent. Tex. Penal Code Ann. § 30.05(a) (Vernon Supp. 2004-05). Appellant expressly consented to allowing motel personnel to enter his room at any time for “maintenance, housekeeping, or to check the room” when he signed an agreement to this effect at the time he checked into the motel. Therefore, the maintenance employee and the assistant manager were not trespassing when they entered appellant’s motel room and observed the marijuana and drug paraphernalia. See Stoner v. California, 376 U.S. 483, 489, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964) (hotel guest “undoubtedly gives ‘implied or express permission’ to ‘such persons as maids, janitors or repairmen’ to enter his room ‘in the performance of their duties’ ”). Accordingly, we overrule appellant’s first point.

In his second point, appellant contends that the trial court erred in admitting evidence that exceeded the scope of the search warrant. Specifically, appellant argues that the search warrant did not authorize the seizure of a receipt for rent he paid to the motel, a notebook containing “dope notes,” and a key to the lock box in which the methamphetamine was found. At trial, appellant’s attorney objected to the admission of all evidence collected during the execution of the warrant on the grounds that the warrant was invalid. He did not, however, complain to the trial court, as he does on appeal, that the receipt and key should have been excluded because they exceeded the scope of the warrant. Although appellant’s attorney eventually objected to the admission of the notebook on those grounds, he did so long after the notebook had been admitted into evidence. Appellant has, therefore, failed to preserve this point for our review because his trial objection to the admission of the receipt and key did not comport with his complaint on appeal, and his objection to the admission of the notebook was untimely. See Tex.R.App. P. 33.1(a)(1). Accordingly, we overrule appellant’s second point.

In his third point, appellant contends that the trial court erred in refusing to conduct a hearing outside the jury’s presence on the voluntariness of his statement to a police officer acknowledging that he was the person occupying room 322. “In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions.” Tex.Code CRim. PROC. Ann. art. 38.22, § 6 (Vernon 2005); see also Jackson v. Denno, 378 U.S. 368, 380, 84 S.Ct. 1774, 1783, 12 L.Ed.2d 908 (1964) (holding that when question is raised about the voluntariness of confession, defendant is entitled to hearing in which voluntariness is determined). An accused may raise the issue of voluntariness by alleging to the trial court that he was in custody when he made the confession, or that his confession was not freely given because of coercion or some other specific reason. Wolfe v. State, 917 S.W.2d 270, 282 (Tex.Crim.App.1996), cert. denied, - U.S. -, 125 S.Ct. 2262, 161 L.Ed.2d 1067 (2005).

In this case, appellant raised the issue of voluntariness by alleging that he was in custody when he acknowledged that he was the person leasing room 322. After Officer Eby testified that appellant acknowledged that he was the person leasing room 322, appellant’s trial counsel lodged the following objection: “I object under the Fifth Amendment and Article I, Section 38.22 of the State Constitution. He was in custodial interrogation in a room where he was held on to for questioning. He was not free to go and no Miranda warnings were given.” The trial court then granted appellant’s trial counsel’s request to take Officer Eby on voir dire. At the conclusion of his voir dire questioning of Officer Eby, appellant’s trial counsel specifically asked for a Jackson v. Denno hearing and twice more alleged that appellant was in custody when he made the statement in question in the following exchange with the court:

[Counsel]: I wanted a Jackson v. Denno hearing. One man said [appellant] was handcuffed when he went in and out; [Officer Eby] said he wasn’t. If he is under arrest, he is handcuffed. Therefore, he is under custodial interrogation, and that’s my objection under Jackson v. Denno.
[The Court]: Okay. It’s established that he was in custody and interrogated. Do you have any further questions?
[Counsel]: Yes. I would ask that the information that he obtained while he was in custody while he was being interrogated arid prior to his Miranda warnings when he is being detained without any lawful reason be suppressed, including the gratuitous offer that he came out of room — that he was in 322. The issue is that he was under arrest when he gave that information. It’s not permissible under the Fifth Amendment, Article I, Section 10 of the State Constitution, or even Article 38.22 of the Code of Criminal Procedure.
[Counsel]: May I have my Jackson v. Denno hearing outside the presence of the jury, Your Honor? I will rest on the Court’s ruling Your Honor.

Because appellant raised a question as to the voluntariness of his statement, we hold that the trial court erred in refusing to conduct a hearing outside of the jury’s presence to determine whether appellant made the statement under voluntary conditions. See Tex.Code CRiM. PROC. Ann. art. 38.22, § 6.

Assuming appellant’s statement was involuntary, and, thus, improperly admitted, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. Tex.R.App. P. 44.2. When the error is constitutional, as it is in this case, we apply rule 44.2(a) and reverse only if we determine beyond a reasonable doubt that the error did not contribute to appellant’s conviction or punishment. Tex.R.App. P. 44.2(a); see Williams v. State, 958 S.W.2d 186, 194 (Tex.Crim.App.1997).

Our harmless error analysis should not focus on the propriety of the outcome of the trial; instead, we should calculate as much as possible the probable impact on the jury in light of the existence of other evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App.2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001). We consider the source and nature of the error, the extent it was emphasized by the State, its probable collateral implications, the weight a juror would probably place on the error, and whether declaring it harmless would be likely to encourage the State to repeat it with impunity. Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989). This requires us to evaluate the entire record in a neutral, impartial, and evenhanded manner, not “in the light most favorable to the prosecution.” Id. at 586.

In this case, the only “statement” at issue is appellant’s acknowledgment to Officer Eby that he was the person leasing room 322. The record shows that appellant’s occupancy of room 322 was not a contested issue at trial; that none of the defensive theories raised in the trial court were founded upon the contention that appellant was not the occupant of room 322; and that appellant’s connection to room 322 and the drugs found in the room was clearly established by other evidence. Appellant’s trial counsel also acknowledged that the motel’s maintenance employee entered appellant’s room and argued that appellant had a privacy interest in room 322.

After carefully reviewing the record and performing the required harm analysis under rule 44.2(a), we hold beyond a reasonable doubt that the admission of appellant’s statement that he was the person leasing room 322 did not contribute to appellant’s conviction or punishment. Tex.R.App. P. 44.2(a). Accordingly, we overrule appellant’s third point.

In his fourth point, appellant contends that the trial court erred by refusing to instruct the jury, pursuant to article 38.23 of the Texas Code of Criminal Procedure, on whether his statements were the result of improper interrogation, whether the keys were adequately linked to him, whether the motel employees entered the room illegally, whether he was lawfully arrested, and whether evidence was seized outside the scope of the search warrant.

Article 38.23 prohibits the admission of evidence obtained in violation of state or federal laws or constitutions against an accused at the trial of any criminal case. Tex.Code Ceim. PROC. Ann. art. 38.23 (Vernon 2005). When there is a factual dispute about whether evidence was obtained in violation of article 38.23, the trial court must instruct the jury to disregard the evidence if it believes, or has a reasonable doubt, that the evidence was obtained illegally. Id.; Balentine v. State, 71 S.W.3d 763, 773-74 (Tex.Crim.App.2002).

There is no factual dispute about how the evidence was obtained in this case. Appellant’s requested instructions related to legal issues only. Therefore, the trial court was not required to instruct the jury under article 38.23. See Reynolds v. State, 848 S.W.2d 148, 149 (Tex.Crim.App.1993). Accordingly, we overrule appellant’s fourth point. Having overruled all of appellant’s points, we affirm the trial court’s judgment.

      . Appellant objected “under the Fourth Amendment, Article I, Section 9 of the Texas Constitution and Article 38.23 of the Texas Code of Criminal Procedure and the previous objection as the warrant is not based on probable cause and is not valid on its face.” Appellant had previously "[rjenewed [his] objection to search and arrest of [appellant] when he was not arrested on a warrant nor based on probable cause, nor had he been seen to be committing an offense,” and ”object[ed] to any testimony about reviewing of [appellant’s] arrest, particularly in light of the fact that when the government offered this videotape, they said it was a video of the room.”

      . Reversal of a judgment for failure to conduct a voluntariness hearing is not constitutionally required. See Jackson, 378 U.S. at 376-77, 84 S.Ct. at 1780-81; Bass v. State, 626 S.W.2d 769, 772-73 (Tex.Crim.App. [Panel Op.] 1982); Mayfield v. State, 821 S.W.2d 357, 358 (Tex.App.-Houston [14th Dist.] 1991, no pet.); see also Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991) (holding that the erroneous admission of a coerced confession is subject to a harmless error analysis).

      . The admission of an invalid confession against an accused violates the due process clause of the Fourteenth Amendment. Jackson, 378 U.S. at 376, 84 S.Ct. at 1780; Rogers v. Richmond, 365 U.S. 534, 540, 81 S.Ct. 735, 739, 5 L.Ed.2d 760 (1961).

      .Appellant’s trial counsel defended appellant by suggesting that 1) appellant had not been in room 322 for two days prior to the discovery of the drugs; 2) the motel maintenance employee was somehow responsible for the presence of the drugs; and 3) the evidence seized from room 322 should be suppressed because it was obtained illegally.

      . Appellant's connection to room 322 and the drugs found in the room was established by the motel manager's testimony that appellant was leasing room 322; Officer Eby’s testimony that he had been told that appellant was the occupant of room 322; Detective Boyd’s testimony that the police found insurance and rent receipts bearing appellant’s name in room 322, and that a key in appellant’s possession opened a safe in room 322 that contained methamphetamine; and evidence showing that appellant’s fingerprints matched those on a plastic bag containing methamphetamine that was found inside the safe in room 322.

      . We note that appellant’s statement was not a "full confession” that "may tempt a jury to rely upon that evidence alone in reaching its decision.” See Fulminante, 499 U.S. at 296, 111 S.Ct. at 1258. Rather, appellant’s statement was "incriminating only when linked to other evidence.” See id.


author: TERRY McCALL, Justice.

text:
    In re CHAMPION TECHNOLOGIES, INC. and Permian Mud Service, Inc.
    No. 11-05-00186-CV.
    Court of Appeals of Texas, Eastland.
    Sept. 15, 2005.

      B. Calvin Hendrick and James W. Ess-man, Shafer, Davis, O’Leary & Stoker, P.C., Odessa, TX, for relator.
    Richard D. Davis, Midland, TX, Cory Curtis, Killion & Curtis L.L.P., Lubbock, TX, for real party in interest.

      Panel consists of: WRIGHT, J., and McCALL, J.

      . W.G. Arnot, III, Chief Justice, retired effective July 31, 2005. The chief justice position is vacant.

   Opinion

TERRY McCALL, Justice.

Order on Motion for Rehearing

Relators, Champion Technologies, Inc. and Permian Mud Service, Inc., filed a petition for writ of mandamus on May 27, 2005, attacking the trial court’s disposition of their motion to compel arbitration. After receiving responses to the petition from the real parties in interest, this court denied the petition on July 14, 2005, without issuing a written opinion. See TEX. R.APP.P. 52.8(d). Relators subsequently filed a motion for rehearing on July 28, 2005. Upon considering the motion for rehearing and the responses filed thereto, this court’s judgment denying the petition is withdrawn, and the petition is conditionally granted as set forth below.

Underlying Proceedings

Real parties in interest, Burl Fuller, Danny Alexander, and Billy York, filed a wrongful termination action against rela-tors on June 12, 2004. Relators filed a motion to compel arbitration on October 14, 2004, alleging that the claims were subject to a written arbitration agreement. On February 4, 2005, the parties appeared for a hearing on the motion to compel arbitration. The real parties in interest announced at the outset that they were not ready for the hearing, presumably because they wanted to conduct additional discovery regarding the enforceability of the arbitration agreement. After receiving the announcements from trial counsel, the trial court took a recess during which it conferred with counsel in chambers. Upon the conclusion of the conference with counsel, the trial court announced the following disposition which is the subject of this proceeding:

After meeting with counsel in chambers, unless counsel really want to, the Court has heard a great deal and has a great deal to read pertaining to the motion to compel, and the Court is aware of the motion to compel arbitration filed by [relators] and the responses of the [real parties in interest]. The Court is going to reserve ruling on that motion to compel at this time and carry it forward.
The Court is going to go through and allow discovery on the theory that the Court may be a little easier to obtain a hearing on other than an arbitration panel. The discovery would probably be conducted whether the case is tried here in state court versus being heard by an arbitration panel. The entire matter may end up before an arbitration panel, but we’re going to go through the discovery process here subject to the Court’s rulings so that by the time the Court makes a determination of whether this case goes to arbitration or whether it’s tried here in this Court, the discovery is complete.
That’s the Court’s aim at this point in time, to where discovery is complete. If the case gets sent to arbitration then the discovery process does not need to be started all over again or continued, discovery is complete... .People have what they — they need to do in order to try their case or present their case.

The trial court also denied relators’ motion to stay discovery pending arbitration at the February 4, 2005, hearing.

Standard of Review

Relators sought to compel arbitration under the provisions of the Federal Arbitration Act (FAA). See 9 U.S.C. §§ 1-16. Under the FAA, the denial of a motion to compel arbitration is reviewable by mandamus because there is no adequate remedy by appeal. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 271-72 (Tex.1992) (orig.proceeding). When Texas courts are called on to decide if disputed claims fall within the scope of an arbitration clause under the FAA, Texas procedure controls that determination. Jack B. Anglin Co., Inc. v. Tipps, supra at 268. We review orders compelling or denying arbitration under the FAA under an abuse of discretion standard. Jack B. Anglin Co., Inc. v. Tipps, supra at 271.

A trial court abuses its discretion if it acts without reference to any guiding rules or principles or acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. den’d, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). When reviewing matters committed to a trial court’s discretion, an appellate court may not substitute its own judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). Nor may a reviewing court set aside the trial court’s determination unless it is clear from the record that the trial court could only reach one decision. Walker v. Packer, supra at 840. Our review of a trial court’s determination of the legal principles controlling its ruling is much less deferential. Walker v. Packer, supra at 840. A trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer, supra at 840. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Walker v. Packer, supra at 840.

Analysis

Relators raise two issues in seeking mandamus relief. They first assert that the trial court abused its discretion by not ruling on their motion to compel arbitration until after the completion of discovery. In their second issue, relators contend that the trial court abused its discretion in denying their motion to stay discovery pending arbitration.

With respect to relators’ first issue, there are conflicting opinions from the First and Thirteenth Courts of Appeals relating to the trial court’s decision to defer ruling on the motion to compel arbitration until after the completion of discovery. In C P & Associates v. Pickett, 697 S.W.2d 828, 831 (Tex.App.-Corpus Christi 1985, no writ), the court of appeals upheld the trial court’s decision to stay arbitration proceedings until the completion of discovery. In In re MHI Partnership, Ltd., 7 S.W.3d 918, 923 (Tex.App.-Houston [1st Dist.] 1999, orig. proceeding), the court of appeals directed the trial court to vacate its order deferring a ruling on a motion to compel arbitration pending completion of discovery. Accordingly, the holding in Pickett appears to support the action taken by the trial court whereas the decision in MHI supports relators’ position. We conclude that the holding of the First Court of Appeals in MHI is the correct statement of the law in this regard.

The First Court of Appeals relied heavily upon the Texas Supreme Court’s decision in Tipps in reaching its holding in MHI. See Jack B. Anglin Co., Inc. v. Tipps, supra. Tipps is a significant opinion because it outlined the procedures to be followed when a motion to compel arbitration is filed. Jack B. Anglin Co., Inc. v. Tipps, supra at 268-269. The supreme court stated in Tipps that the expedited disposition of a dispute is one of the main benefits of arbitration. Jack B. Anglin Co., Inc. v. Tipps, supra at 269. The supreme court also acknowledged that the legislature has mandated that a motion to compel arbitration is to be “summarily” decided. Jack B. Anglin Co., Inc. v. Tipps, supra at 269; see TEX. CIV. PRAC. & REM. CODE ANN. § 171.021(b) (Vernon 2005). In MHI, the court of appeals relied upon the principles announced in Tipps to conclude that a motion to compel arbitration should be decided in an expedient manner. In re MHI Partnership, Ltd., supra at 922-28. The court of appeals concluded that the trial court had no discretion to defer ruling on the merits of a motion to compel arbitration until after discovery had been completed in the case because doing so violated the mandate that arbitration issues be decided summarily. In re MHI Partnership, Ltd., supra at 923.

We agree with the First Court of Appeals’s determination in MHI that delaying a decision on a motion to compel arbitration until after discovery is completed defeats the goal of resolving arbitration issues promptly. We also agree that the trial court lacks discretion to defer ruling on a motion to compel arbitration until the completion of all discovery in the case because doing so forces the parties to litigate their dispute in the trial court even though it may ultimately be determined that all or some of the claims are subject to arbitration. We note in this regard that the arbitration provision at issue in this case explicitly provides that “[t]he arbitrator shall have discretion to determine the form, amount and frequency of discovery by the Parties.” Accordingly, we conclude that the trial court abused its discretion by deferring its ruling on the motion to compel arbitration until after the completion of discovery in the case.

The real parties in interest argue that, in light of the holding in Pickett, the trial court did not act without reference to guiding rules and principles and, therefore, did not abuse its discretion. However, we have determined that the holding in Pickett is incorrect. As noted previously, a trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer, supra at 840. The real parties in interest additionally argue that relators have waived their right to obtain a ruling on their motion to compel arbitration prior to the completion of discovery as a result of relators’ participation in the discovery process to date. This argument is more properly characterized as addressing the merits of the motion to compel arbitration. See EZ Pawn Corporation v. Mandas, 934 S.W.2d 87, 89 (Tex.1996); In re MHI Partnership, Ltd., supra at 921. Relators’ first issue is sustained.

In support of their second issue, relators’ arguments focus on the merits of their motion to compel arbitration. Rela-tors ask this court to enter an order referring this litigation to arbitration and stay all discovery pending arbitration. As correctly noted by the real parties in interest, the arbitration issue is not ripe for our consideration because the trial court has not made a ruling on the merits of the motion to compel arbitration. See In re MHI Partnership, Ltd., supra at 921. Ac-eordingly, we do not reach relators’ second issue.

This Court’s Ruling

This court’s judgment of July 14, 2005, denying the petition is withdrawn. We conditionally grant the petition for writ of mandamus. A writ of mandamus will issue if the trial court does not (1) vacate its order deferring a ruling on relators’ motion to compel arbitration and (2) either rule summarily on the motion or rule on the motion after conducting an evidentiary hearing promptly if one is required to determine disputed facts on the issues relevant to the merits of the motion to compel arbitration. See Section 171.021(b).

      . The arbitration agreement at issue provides that the provisions of the FAA are to govern its application.

      . It is significant to note that the opinion of the Thirteenth Court of Appeals in Pickett preceded the supreme court’s opinion in Tipps.