in Re D. Wilson Construction Company

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 05-0326

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In re D. Wilson Construction

Company, et al., Relators

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On Petition for Writ of Mandamus

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consolidated

with

════════════

No. 05-0327

════════════

American Standard and the

Trane Company, et al., Petitioners,

v.

Brownsville Independent School

District ,

Respondent

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Thirteenth District

of Texas

════════════════════════════════════════════════════

Argued February

14, 2006

Justice Willett delivered the opinion

of the Court, in which Chief Justice

Jefferson, Justice Hecht, Justice O’Neill, Justice Wainwright, Justice Medina,

Justice Green , and Justice

Johnson joined.

Justice Brister filed a concurring

opinion.

In this

consolidated proceeding, we decide whether the court of appeals had jurisdiction

over an interlocutory appeal under the Texas Arbitration Act and whether the

parties’ arbitration agreements are ambiguous. We hold that the court of appeals

had jurisdiction over the interlocutory appeal and that the agreements are not

ambiguous.

I. Background

In 1993, the

Brownsville Independent School District contracted with two general contractors,

D. Wilson Construction Company and Stotler Construction Company, to build two

schools in Brownsville. Both contracts incorporate General Conditions and

Supplementary Conditions.

The General

Conditions expressly incorporate AIA Document A201, a standard construction

industry document published by the American Institute of Architects that details

the parties’ respective rights, responsibilities and relationships on the

project. [1] Paragraph 4.5 of A201 is titled

“Arbitration,” and subparagraph 4.5.1, titled “Controversies and Claims Subject

to Arbitration,” sets forth the broad, catch-all scope of the arbitration

agreement: “Any controversy or Claim arising out of or related to the

Contract, or the breach thereof, shall be settled by arbitration in accordance

with the Construction Industry Arbitration Rules of the American Arbitration

Association . . . .”

The

Supplementary Conditions state that they “modify, change, delete from or add to”

the General Conditions. Among other things, the Supplementary Conditions “[a]dd

new Clause 4.5.1.1” to the arbitration provision: “Except as otherwise

provided in this Contract, any dispute concerning a question of fact arising

under this contract, which is not disposed of by agreement shall be decided by

[BISD] . . . . The decision of [BISD] shall be final and

conclusive unless” it is timely appealed to the Superintendent and then to the

BISD Board of Trustees, “whose decision shall be final and conclusive.”

This

litigation began when one of the subcontractors, American Standard and the Trane

Company (Trane), sought injunctive relief against BISD to preserve evidence in a

personal injury action that students and teachers brought against Trane in

another court. BISD counterclaimed for alleged defects in the construction of

the two schools and filed third-party actions against several parties, including

general contractors Wilson and Stotler, as well as subcontractors and

second-tier subcontractors. Trane and the third-party defendants filed or joined

motions to compel arbitration under the Federal Arbitration Act, 9 U.S.C. §§

1–16, and the Texas Arbitration Act,

Tex. Civ. Prac. & Rem. Code §§ 171.001–.098. [2] After a hearing, the trial court

issued a brief letter ruling denying arbitration, saying “the Court finds the

contract in question ambiguous.” Trane and the third-party defendants filed both

a petition for writ of mandamus under the FAA and an interlocutory appeal under

the TAA, and the court of appeals consolidated the two proceedings. __ S.W.3d

__, __, Nos. 13-04-184-CV, 13-04-333-CV, 2005 WL 310777 , at *1 (citing In re

Valero Energy Corp. , 968 S.W.2d 916 , 916–17 (Tex. 1998)). The court of

appeals dismissed the interlocutory appeal for want of jurisdiction, finding the

TAA inapplicable since the dispute concerned a “‘transaction involving

commerce.’“ Id . at __, 2005 WL 310777 , at *2 (quoting In re MONY Sec.

Corp. , 83 S.W.3d 279 , 282–83 (Tex. App.—Corpus Christi 2002, consolidated

appeal and orig. proceeding). The court also denied the petition for writ of

mandamus, holding that clause 4.5.1.1 in the Supplementary Conditions creates

ambiguity. Id . at __, 2005 WL 310777 , at *3. In this appeal, Trane and

the third-party defendants complain that (1) the court of appeals erred in

dismissing their interlocutory appeal under the TAA for want of jurisdiction,

and (2) the trial court erred in deeming the arbitration agreements

ambiguous and abused its discretion in denying their motions to compel

arbitration.

II. Jurisdiction of the Court of Appeals

Trane and the

third-party defendants first argue that the court of appeals erred in dismissing

their TAA-based interlocutory appeal for want of jurisdiction. We agree. [3]

The contracts

in question reference neither the FAA nor TAA, merely noting that “[t]he

Contracts shall be governed by the law of the place where the Project is

located.” We have interpreted identical language to invoke federal and

state law. In re L & L Kempwood Assocs., L.P. , 9 S.W.3d 125 ,

127–28 (Tex. 1999) (per curiam) (consolidated appeal and orig. proceeding).

Trane and the third-party defendants sought relief under both statutes in the

court of appeals, bringing a petition for writ of mandamus under the FAA, see

Jack B. Anglin Co. v. Tipps , 842 S.W.2d 266 , 272–73 (Tex. 1992), and an

interlocutory appeal under the TAA, Tex.

Civ. Prac. & Rem. Code § 171.098(a)(1).

While

refusing jurisdiction under the TAA, the court of appeals recognized that it at

least had jurisdiction under the FAA to consider the mandamus petition. __

S.W.3d at __, 2005 WL 310777 , at *2. We held in Jack B. Anglin Co. that

mandamus is appropriate to review a trial court’s denial of a motion to compel

arbitration under the FAA. 842 S.W.2d at 272–73.

The court of

appeals determined that it lacked jurisdiction over the interlocutory appeal

under the TAA because the construction contracts involved interstate commerce,

thus implicating the FAA. __ S.W.3d at __, 2005 WL 310777 , at *2; see Perry

v. Thomas , 482 U.S. 483, 489 (1987) (the FAA applies when the dispute

concerns a “contract evidencing interstate commerce”); 9 U.S.C. § 1

(“‘commerce’ . . . means commerce among the several States”); In re

L & L Kempwood Assocs., L.P. , 9 S.W.3d at 127 (noting that the

FAA “extends to any contract affecting commerce, as far as the Commerce Clause

of the United States Constitution will reach”).

The court of

appeals is not alone in dismissing interlocutory appeals under the TAA when the

FAA applies. See Kroupa v. Casey , Nos. 01-05-00224-CV, 01-05-00376-CV,

2005 WL 3315279 , at *4 (Tex. App.—Houston [1st Dist.] 2005, consolidated appeal

and orig. proceeding) (not designated for publication); Am. Med. Tech., Inc.

v. Miller , 149 S.W.3d 265 , 269–70 (Tex. App.—Houston [14th Dist.] 2004,

consolidated appeal and orig. proceeding); Verlander Family Ltd. P’ship v.

Verlander , No. 08-02-00135-CV, 2003 WL 304098 , at *3 (Tex. App.—El Paso

2003, no pet.); Pennzoil Co. v. Arnold Oil Co. , 30 S.W.3d 494, 498 (Tex.

App.—San Antonio 2000, consolidated appeal and orig. proceeding). Other courts

have granted mandamus relief and dismissed the consolidated interlocutory appeal

as moot. See, e.g., Kirby Highland Lakes Surgery Ctr., L.L.P. v. Kirby ,

183 S.W.3d 891 , 895 & n.5 (Tex. App.—Austin 2006, consolidated appeal and

orig. proceeding); In re MacGregor (FIN) Oy , 126 S.W.3d 176, 181, 184

(Tex. App.—Houston [1st Dist.] 2003, consolidated appeal and orig.

proceeding).

We take this

opportunity to clarify precisely when the FAA preempts the TAA. Many courts of

appeals wrongly view the FAA and TAA as mutually exclusive, but the United

States Supreme Court and this Court have held a different view for some

time: the FAA only preempts contrary state law, not consonant state

law. The United States Supreme Court has said:

The FAA

contains no express pre-emptive provision, nor does it reflect a congressional

intent to occupy the entire field of arbitration. But even when Congress has not

completely displaced state regulation in an area, state law may nonetheless be

pre-empted to the extent that it actually conflicts with federal law—that is, to

the extent that it “stands as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress.” The question before us,

therefore, is whether application of [state law] to stay arbitration under this

contract in interstate commerce . . . would undermine the goals and

policies of the FAA.

Volt Info.

Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ. , 489 U.S. 468 ,

477–78 (1989) (citations omitted) (quoting Hines v. Davidowitz , 312 U.S.

52, 67 (1941)). Similarly, this Court has noted that the FAA “preempts state

statutes to the extent they are inconsistent with that Act.” Jack B. Anglin

Co. , 842 S.W.2d at 271 .

Recently, in

the case of In re Nexion Health at Humble, Inc. , this Court articulated a

four-factor test to determine whether the TAA would thwart the goals and

policies of the FAA in a particular case. 173 S.W.3d 67, 69 (Tex. 2005) (per

curiam) (construing 9 U.S.C. § 2 ). The FAA only preempts the TAA

if: “(1) the agreement is in writing, (2) it involves interstate

commerce, (3) it can withstand scrutiny under traditional contract defenses

[under state law], and (4) state law affects the enforceability of the

agreement .” Id . (emphasis added). In today’s case, the court of

appeals ignored the fourth factor. The mere fact that a contract affects

interstate commerce, thus triggering the FAA, does not preclude enforcement

under the TAA as well. For the FAA to preempt the TAA, state law must refuse to

enforce an arbitration agreement that the FAA would enforce, either because (1)

the TAA has expressly exempted the agreement from coverage, see Tex. Civ. Prac. & Rem. Code

§ 171.002(a) (detailing various claims the TAA “does not apply to”),

or (2) the TAA has imposed an enforceability requirement not found in the

FAA, see In re Nexion Health at Humble, Inc. , 173 S.W.3d at 69

(“The TAA interferes with the enforceability of the arbitration agreement by

adding an additional requirement—the signature of a party’s counsel—to

arbitration agreements in personal injury cases.”). The parties have asserted

nothing in the TAA or other state law that would subvert enforcement of the

agreements at issue. Therefore, the FAA does not preempt the TAA in this case,

and the court of appeals had jurisdiction under both laws. [4]

III. Ambiguity of the Arbitration Agreements

Trane and the

third-party defendants next argue that the trial court wrongly deemed the

arbitration agreements ambiguous and abused its discretion in denying their

motions to compel arbitration. We decide the merits under our mandamus

jurisdiction. [5]

Mandamus is

proper to correct a clear abuse of discretion when there is no adequate remedy

by appeal, Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992) (orig.

proceeding), as when a party is erroneously denied its contracted-for

arbitration rights under the FAA, Jack B. Anglin Co. , 842 S.W.2d at

272–73. Also, a trial court “has no ‘discretion’ in determining what the law is

or applying the law to the facts.” Walker , 827 S.W.2d at 840 . In

evaluating a motion to compel arbitration, a court must determine first whether

a valid arbitration agreement exists, and then whether the agreement encompasses

the claims raised. In re Oakwood Mobile Homes, Inc. , 987 S.W.2d 571, 573

(Tex. 1999) (per curiam). When deciding whether the parties agreed to arbitrate

under the FAA, courts should apply ordinary state law principles regarding the

formation of contracts. First Options of Chicago, Inc. v. Kaplan , 514

U.S. 938, 944 (1995); J.M. Davidson, Inc. v. Webster , 128 S.W.3d 223 ,

227–28 (Tex. 2003).

In a letter

ruling, the trial court found “the contract in question ambiguous”; however, the

record does not indicate whether the trial court was uncertain as to the

agreements’ existence or merely their scope. We address these two issues in

turn.

A. Ambiguity Concerning the Existence of Valid

Agreements

Whether a

valid arbitration agreement exists is a legal question subject to de novo

review. J.M. Davidson, Inc. , 128 S.W.3d at 227 . Whether contractual

ambiguity exists is likewise a question of law. See Columbia Gas Transmission

Corp. v. New Ulm Gas, Ltd. , 940 S.W.2d 587, 589 (Tex. 1996). Inartful

drafting does not alone render a contractual provision ambiguous. See

Universal C.I.T. Credit Corp. v. Daniel , 243 S.W.2d 154, 157 (Tex. 1951). A

contract is ambiguous only if it is subject to “two or more reasonable

interpretations after applying the pertinent rules of construction.” Columbia

Gas Transmission Corp. , 940 S.W.2d at 589 . Ambiguity does not exist merely

because the parties assert forceful and diametrically opposing interpretations.

Id.

BISD contends

that the contracts with Wilson and Stotler (1) contain no arbitration

language at all, or (2) contain ambiguous language. The trial court’s

three-sentence letter ruling is silent on the first point, while the court of

appeals, “[a]ssuming without determining that the contracts contain arbitration

language,” concluded that “the supplementary conditions create ambiguity.” __

S.W.3d at __, 2005 WL 310777 , at *3.

We disagree

with BISD that its contracts with Wilson and Stotler contained no arbitration

language. The contracts validly and expressly incorporate by reference the

expansive arbitration language of subparagraph 4.5.1 of A201. Innumerable

contracts are consummated every day in Texas that incorporate other documents by

reference. A contractual term is not rendered invalid merely because it exists

in a document incorporated by reference, Owen v. Hendricks , 433 S.W.2d

164, 166 (Tex. 1968), and we agree with the courts of appeals that

arbitration-related language is no exception to this rule. See, e.g.,

Teal Constr. Co./Hillside Villas Ltd. v. Darren Casey Interests, Inc. , 46

S.W.3d 417, 420 (Tex. App.—Austin 2001, pet. denied) (holding that an unsigned

arbitration agreement contained in a document incorporated by reference into the

signed contract constitutes an enforceable arbitration agreement); D. Wilson

Constr. Co. v. McAllen Indep. Sch. Dist. , 848 S.W.2d 226, 230 (Tex.

App.—Corpus Christi 1992, writ dism’d w.o.j.) (rejecting the argument that an

arbitration agreement incorporated by reference is invalid or unenforceable).

Accordingly, we reject BISD’s argument that these provisions were not validly

incorporated into the contracts with Wilson and Stotler.

We likewise

reject BISD’s argument, and the trial court’s holding, that the arbitration

agreements are ambiguous. Subparagraph 4.5.1 of A201 states: ”Any

controversy or Claim arising out of or related to the Contract, or the breach

thereof, shall be settled by arbitration in accordance with the Construction

Industry Arbitration Rules of the American Arbitration Association

. . . .” The Supplementary Conditions “[a]dd new Clause 4.5.1.1”

to the arbitration provision: ”Except as otherwise provided in this

Contract, any dispute concerning a question of fact arising under this contract,

which is not disposed of by agreement shall be decided by [BISD]

. . . . The decision of [BISD] shall be final and conclusive

unless” it is timely appealed to the Superintendent and then to the BISD Board

of Trustees, “whose decision shall be final and conclusive.”

The caption

of clause 4.5.1.1 in the Supplementary Conditions evinces the parties’ intent to

“[a]dd new Clause 4.5.1.1 to subparagraph 4.5.1.” Clause 4.5.1.1 is added

to subparagraph 4.5.1, and the clause’s numerical designation places it

beneath subparagraph 4.5.1. In addition, clause 4.5.1.1 begins with the caveat,

“[e]xcept as otherwise provided in this Contract.” Subparagraph 4.5.1 does

provide otherwise in certain cases. If the parties intended for clause 4.5.1.1

to supplant subparagraph 4.5.1, they could have easily drafted language to

accomplish exactly that. [6] Further, clause 4.5.1.1 does not

mention the additional arbitration procedures set forth in subparagraphs

4.5.2–4.5.7. If clause 4.5.1.1 negates subparagraph 4.5.1, as BISD contends,

then subparagraphs 4.5.2–4.5.7 are meaningless. The placement, caption, and

caveat of clause 4.5.1.1, as well as the language of subparagraphs 4.5.2–4.5.7,

indicate that the clause is subordinate to subparagraph 4.5.1 if subparagraph

4.5.1 applies in a given situation.

BISD argues

that such a construction would render clause 4.5.1.1 meaningless. We disagree.

By its terms, clause 4.5.1.1 applies to “any dispute concerning a question of

fact arising under this contract,” while subparagraph 4.5.1 applies to

“[a]ny controversy or Claim arising out of or relating to the Contract, or the

breach thereof . . . .” (emphasis added). While the scope of

clause 4.5.1.1 is narrower than the scope of subparagraph 4.5.1, certain

situations would fall solely under the factual dispute clause. For example, the

construction contracts could have called for solid brass doorknobs throughout

the schools. BISD could have argued that the doorknobs Wilson and Stotler used

were brass-plated instead of solid brass. Whether the doorknobs are solid brass

or brass-plated would be a factual dispute subject to clause 4.5.1.1.

We hold that

the arbitration agreements and clause 4.5.1.1 can be reconciled; the arbitration

agreements are not susceptible to more than one reasonable interpretation and

are therefore not ambiguous. Columbia Gas Transmission Corp. , 940 S.W.2d

at 589 .

B. Ambiguity Concerning the Scope of the Agreements

We next

consider whether there is ambiguity concerning the agreements’ scope. The strong

presumption favoring arbitration generally requires that we resolve doubts as to

the scope of the agreements in favor of coverage. In re Kellogg, Brown &

Root, Inc. , 166 S.W.3d 732, 737 (Tex. 2005); In re FirstMerit Bank ,

52 S.W.3d 749, 753 (Tex. 2001); Cantella & Co. v. Goodwin , 924 S.W.2d

943, 944 (Tex. 1996) (per curiam) (orig. proceeding). Once an agreement is

established, “a court should not deny arbitration ‘ unless it can be said with

positive assurance that an arbitration clause is not susceptible of

an interpretation which would cover the dispute at issue.’” Prudential Sec.

Inc. v. Marshall , 909 S.W.2d 896, 899 (Tex. 1995) (per curiam) (orig.

proceeding) (emphasis in original) (quoting Neal v. Hardee’s Food Sys.,

Inc. , 918 F.2d 34, 37 (5th Cir. 1990)).

Here, BISD

claims there are construction defects throughout the two schools. This dispute

is a “controversy or Claim arising out of or related to the Contract” to build

the schools and thus falls squarely within the scope of the arbitration

agreements.

We find no

ambiguity in either the validity or the scope of these arbitration agreements.

Trane and the third-party defendants have proven the existence of valid

arbitration agreements that cover the present dispute. In re Oakwood Mobile

Homes, Inc. , 987 S.W.2d at 573 . The trial court abused its discretion by

denying the motions to compel arbitration after finding “the contract in

question ambiguous.”

C. Waiver

Finally, BISD

argues that Trane and Stotler waived any right to arbitrate. In a personal

injury suit filed by students and teachers in a separate court, Trane, Stotler,

and Mac’s Insulation, Inc. filed cross-actions against BISD, seeking indemnity

in that case. Trane also filed the present suit against BISD to obtain

injunctive relief to preserve evidence in that personal injury case.

There is a

strong presumption against waiver under the FAA. In re Vesta Ins. Group,

Inc. , __ S.W.3d __, __, 2006 WL 662335, at *2 (Tex. 2006) (per curiam).

“Merely taking part in litigation is not enough unless a party ‘has

substantially invoked the judicial process to its opponent’s detriment.’”

Id . (quoting In re Serv. Corp. Int’l , 85 S.W.3d 171, 174 (Tex.

2002)). In In re Vesta Ins. Group, Inc. , we held that the relators, who

litigated in the trial court for two years, did not substantially invoke the

judicial process to their opponent’s detriment because the relators engaged in

minimal discovery, and the real party in interest failed to demonstrate

sufficient prejudice to overcome the strong presumption against waiver.

Id . at __, 2006 WL 662335, at *3 .

Likewise,

BISD has failed to demonstrate how the cross-actions for indemnity in the

separate personal injury suit or Trane’s pursuit of injunctive relief related to

that case have worked to BISD’s detriment. We hold that the actions of Trane,

Stotler, and Mac’s Insulation, Inc. do not constitute waiver of their right to

arbitrate.

IV. Conclusion

The trial

court abused its discretion by finding the contracts ambiguous and denying the

motions to compel arbitration. There is no ambiguity in either the existence or

scope of these arbitration agreements. We conditionally grant the writ of

mandamus and direct the trial court to (1) vacate its order denying the

motions to compel arbitration, (2) grant Stotler’s motion to compel

arbitration, (3) conduct further proceedings to determine whether Wilson is

entitled to arbitration, [7] and (4) conduct further

proceedings to determine whether the various nonsignatories are entitled to

arbitration. The writ will issue only if the trial court fails to comply.

Insofar as we have granted full relief under our mandamus jurisdiction, we

dismiss the related interlocutory appeal as moot.

_______________________________________

Don R.

Willett

Justice

Opinion delivered: June 30,

2006

[1] Document Synopses by Series, at

http://www.aia.org/docs_series. The American Institute of Architects represents

the professional interests of America’s architects. The AIA: Advocacy

Community, Knowledge, at http://www.aia.org/about_default. Among

other things, the AIA publishes industry standard documents for design and

construction projects. About AIA Contract Documents, at

http://www.aia.org/docs_about&defPr’1. Document A201 “is frequently

adopted by reference into a variety of other agreements . . . to

establish a common basis for the primary and secondary relationships on the

typical construction project.” Instruction Sheet for AIA Document A201,

General Conditions of the Contract for Construction—1987 Edition at 1,

available at http://www.engin.umich.edu/class/cee431/AIA/A201Inst.PDF. In

the instant case, the General Conditions incorporate the 1987 (14th) Edition of

AIA Document A201, which is approved and endorsed by the Associated General

Contractors of America. AIA Document A201, General Conditions of the Contract

for Construction (1987).

[2] Four third-party defendants filed independent motions

to compel arbitration: Wilson, Stotler, Mijares Mora Architects, Inc., and

Zamora Engineering, Inc. Mac’s Insulation, Inc. joined Stotler’s motion. Trane,

Victoria Air Conditioning, Ltd., and Superheat Air Balancing Co., Inc. joined

the Wilson and Stotler motions. Al Cardenas Masonry Inc. joined Trane’s motion.

Sechrist-Hall Co., Wrightway Construction, Inc., and Rio Mechanical, Inc. joined

the Wilson and Trane motions. The independent motions of Mijares Mora

Architects, Inc. and Zamora Engineering, Inc. do not invoke the FAA or TAA.

Wilson’s motion is not in the record, and we are thus unable to determine

whether it invokes the FAA, TAA, both, or neither. All other motions invoke the

FAA or both the FAA and the TAA. The motions of all subcontractors and

second-tier subcontractors also argue that the doctrine of equitable estoppel

allows nonsignatories to the Wilson and Stotler contracts to obtain the benefits

of the arbitration agreements therein.

[3] This Court undeniably has jurisdiction to review the

correctness of the court of appeals’ decision that it lacked jurisdiction over

the TAA-based interlocutory appeal. See McAllen Med. Ctr., Inc. v.

Cortez , 66 S.W.3d 227, 231 (Tex. 2001) (“When a court of appeals determines

that it lacks jurisdiction over an interlocutory appeal, this Court has

jurisdiction to review that decision.”).

[4] While we continue to see no benefit in requiring

parties to pursue parallel proceedings that are “unnecessarily expensive and

cumbersome,” we remain mindful that “we may not enlarge appellate

jurisdiction absent legislative mandate.” Jack B. Anglin Co. , 842 S.W.2d

at 272 . We again invite the Legislature, “[i]n the interests of promoting the

policy considerations of rigorous and expedited enforcement of arbitration

agreements, . . . to consider amending the Texas Act to permit

interlocutory appeals of orders issued pursuant to the Federal Act.”

Id .

[5] Our analysis today proceeds under the FAA because, as a

procedural matter, Trane and the third-party defendants only assert in their

“Statement of Jurisdiction” that this Court has jurisdiction under Cortez

to decide whether the lower court had jurisdiction. 66 S.W.3d at 231 (“When a

court of appeals determines that it lacks jurisdiction over an interlocutory

appeal, this Court has jurisdiction to review that decision.”). They do not

assert “conflict or dissent” jurisdiction under the general interlocutory appeal

statute. Tex. Gov’t Code §

22.225(c).

[6] A subparagraph later in the Supplementary Conditions

states that it “[d]elete[s] the first sentence [of subparagraph 5.2.1 of the

General Conditions] and substitute[s] the following . . . .”

Clearly, the parties thus were free able to delete and replace language in the

General Conditions with language in the Supplementary Conditions, ands they had

done so elsewhere.

[7] Wilson’s motion to compel arbitration is not in the

record.