AOF Services, LLC v. Ronald Santorsola

ACCEPTED
13-14-00641-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
2/13/2015 4:42:42 PM
DORIAN RAMIREZ
CLERK

FILED IN
NO. 13-14-00641-CV
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
2/13/2015 4:42:42 PM
__________________________________________________________________
DORIAN E. RAMIREZ
Clerk
IN THE COURT OF APPEALS

FOR THE 13th DISTRICT OF TEXAS

__________________________________________________________________

AOF SERVICES, LLC
Appellant
v.

RONALD SANTORSOLA
Appellee

ON APPEAL FROM AN INTERLOCUTORY ORDER OF THE
2nd 25th DISTRICT COURT OF GONZALES COUNTY, TEXAS
TRIAL COURT NO. 25,609-CV

BRIEF FOR THE APPELLANT

AOF SERVICES, LLC

Paul C. Allred
Texas Bar No. 01102000
8150 N. Central Expressway, Suite 700
Dallas, TX 75206
Tel (214) 448-9496
Fax (214) 276-1325
paulallred@msn.com

Attorney for Appellant
 (ORAL ARGUMENT REQUESTED)
IDENTITY OF PARTIES AND COUNSEL

PARTIES

AOF Services, LLC
Defendant-Appellant

Ronald Santorsola
Plaintiff-Appellee

APPELLANT’S COUNSEL

Paul C. Allred

Texas Bar No. 01102000

8150 N. Central Expressway, Suite 700

Dallas, TX 75206

Tel (214) 448-9496

Fax (214) 276-1325

paulallred@msn.com

APPELLEE’S COUNSEL

Javier Espinoza,

The Espinoza Law Firm

503. E. Ramsey, Suite 103

San Antonio, TX 78216

Tel (210) 229-1300

Fax (210) 229-1302

javier@espinozafirm.com

 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................... i

REQUEST FOR ORAL ARGUMENT ....................................................... iii

CERTIFICATE OF COMPLIANCE .......................................................... iii

TABLE OF AUTHORITIES ........................................................................ iv

STATEMENT OF THE CASE ..................................................................... vi

ISSUES PRESENTED FOR REVIEW ....................................................... vii

STATEMENT OF FACTS ....................... .................................................... viii

SUMMARY OF THE ARGUMENT ........................................................... 10

ARGUMENT AND AUTHORITIES .......................................................... 12

CONCLUSION/PRAYER.............................................................................. 26

CERTIFICATE OF SERVICE ......................................................................27

APPENDIX…………………………………..……………………….……….28

 REQUEST FOR ORAL ARGUMENT

Appellant believes that oral argument is appropriate and will assist the Court

of Appeals in resolving the issues presented in this appeal. Appellant therefore

respectively requests the opportunity to present oral argument in this cause.

CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft

Word and contains 4,473 words, as determined by the computer software’s word-

count function, excluding the sections of the document listed in Texas Rule of

Appellate Procedure 9.4(i)(1).

Paul C. Allred

iii
 TABLE OF AUTHORITIES

CASES page

In re Jim Walter Homes, Inc. ………………………………………… 12
207 S.W.3d 888, 897 (Tex. App.—Houston
[14th Dist.] 2000, orig. proceeding)

Jack B. Anglin Co. v. Tipps, …………………………………………. 12

842 S.W.2d 266, 260 (Tex. 1992)

(orig. proceeding)

In re Halliburton …………………………………………………………….. 12
80 S.W.3d 566, 572 (Tex. 2002)

Hathaway v. General Mills, Inc. ……………………………………………12
711 S.W.2d 227 (Tex.1986)

In re FirstMerit Bank, N.A. ………………………………………………… 13, 14
52 S.W.3d 749, 756 (Tex. 2001)

ReadyOne Industries, Inc. v. Flores ……………………….……….………13
S.W.3d, No. 08-13-00161-CV, 2014
WL 6982275 (Tex. App.—El Paso Dec. 10, 2014, no pet. h.)

In re Poly-America, L.P. …………………………………………………… 14, 18, 19
262 S.W.3d 337, 355-56 (Tex. 2008) (orig. proceeding)

Pilot Travel Ctrs., LLC v. McCray ………………………………………… 14, 19, 20
416 S.W.3d 168, 180 (Tex. App.—Dallas 2013, no pet.)

Royston, Rayzor, Vickery & Williams, L.L.P. v. Lopez…………….…… 15
2013 Tex. App. LEXIS 7843 at *23
(Tex. App. – Corpus Christi, June 27, 2013)

iv
In re Fleetwood Homes of Texas, L.P……………………………………... 16

257 S.W.3d 692, 695 (Tex. 2008) (per curium)

Green Tree Fin. Corp.—Ala. v. Randolph …………………………..…… 19

531 U.S. 79, 90-91 (2000)

In re Weeks Marine, Inc. …………………………………………………… 20

242 S.W.3d 849, 859 (Tex. App.—Houston

[14th Dist.] 2007, mand. denied)

STATUTES

Texas Labor Code Section §451 ……………………………………… 8

v

 STATEMENT OF THE CASE

The underlying suit brought by Appellee is for wrongful termination from

his employment with AOF Services, LLC (“AOF”). This interlocutory appeal,

however, relates only to the trial court’s denial of AOF’s Plea in Abatement and

Motion to Compel Arbitration. AOF sought enforcement of a written arbitration

agreement between the parties; Appellee contested the Motion to Compel. After

hearing, the trail court found that the arbitration agreement was unconscionable

and unenforceable and entered an order denying the Motion to Compel.

AOF appeals the trial court’s interlocutory order denying its Motion to

Compel.

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 ISSUES PRESENTED

1. The trial court erred in holding that the arbitration agreement is
unconscionable.

2. The trial court erred in holding that the arbitration agreement is
unenforceable.

3. The trial court erred in denying AOF’s Plea in Abatement and Motion to
Compel Arbitration.

APPELLANT’S BRIEF -Page 7
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 STATEMENT OF FACTS

1. On June 13th, 2013, AOF offered Appellee, Ronald Santorsola

(“Appellee”) employment as a laborer in its oil field services business. (Apx:

Exhibit B p3) As a condition to employment, Appellee agreed to resolve certain

disputes between the parties in arbitration. (See Dispute Resolution Policy, at

Apx: Exhibit B p4)

2. After working for AOF for approximately two and a half months,

Appellee allegedly sustained a work related injury and filed suit against AOF

claiming wrongful termination pursuant to Texas Labor Code section 451 (Apx:

Exhibit C at p1). AOF disputes the alleged work related injury and alleged

wrongful termination.

3. AOF filed its Plea in Abatement and Motion To Compel Arbitration

(“the Motion to Compel”) in the wrongful termination suit, seeking enforcement of

the Dispute Resolution Policy (Apx: Exhibit A). In support thereof, AOF filed

the affidavit of Amit Sharma as a business records affidavit and attached the

Dispute Resolution Policy, more than 14 days before the hearing on Motion to

Compel (Apx: Exhibit B).

4. The trial court held a hearing on AOF’s Motion to Compel on May

9th, 2014, before the Honorable W.C. Kirkendall (CR-II: at 1). On June 16th,

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2014, Judge Kirkendall advised the parties that he was denying the Motion to

Compel because he found the arbitration agreement unconscionable and

unenforceable (Apx: Exhibit D). On October 20th, 2014 the trial court entered an

order denying the Motion to Compel (CR:III at 13) (Apx: Exhibit E).

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 SUMMARY OF THE ARGUMENT

Arbitration agreements are favored under Texas law and are presumed to be

fully enforceable. Appellee agreed to resolve certain disputes between the parties

through binding arbitration as a condition to his employment with AOF.

Appellee does not dispute this; nor does he dispute that claims made in Appellee’s

suit are within the scope of the arbitration agreement. Nevertheless, Appellee

claims, and the trial court found, that the arbitration agreement is unenforceable.

Appellee argues that the arbitration agreement is unconscionable, and thus

unenforceable, for three reasons:

a) that it is one sided in favor of the AOF;

b) that it unreasonably limits Appellee’s discovery; and

c) that it contains a cost sharing and fee splitting agreement.

(CC:II at p7 line 8)

The evidence submitted by Appellee, however, does not support the trial

court’s finding that the arbitration agreement was unconscionable on any of these

grounds. Moreover, the unambiguous terms of the arbitration agreement

conclusively show that the agreement is not one-sided in favor or AOF. Therefore,

the trial court erred in denying AOF’s Plea in Abatement and Motion to Compel

Arbitration.

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 AOF respectively requests this Court to reverse the trial court’s order

denying AOF’s Plea in Abatement and Motion To Compel Arbitration, and render

judgment in favor of Appellant compelling arbitration and abating pending suit

pending resolution of the arbitration proceeding.

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 ARGUMENT AND AUTHORITIES
A. It Is Appellee’s Burden To Prove That The Arbitration Agreement Is
Unconscionable

AOF filed its Plea in Abatement and Motion to Compel Arbitration. (Apx:

Exhibit A). The party moving to compel arbitration has the initial burden of proof

to establish by summary proof that an agreement to arbitrate exists and to show

that the claims asserted against it fall within the arbitration agreement’s scope. In

re Jim Walter Homes, Inc., 207 S.W.3d 888, 897 (Tex. App.—Houston [14th Dist.]

2000, orig. proceeding) (citing Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 260

(Tex. 1992) (orig. proceeding)).

Appellee was an at-will employee of AOF. (Apx: Exhibit B p4) As a

condition to Appellee’s employment with AOF, Appellee had to agree to the

company’s Dispute Resolution Policy, which includes the arbitration agreement at

issue in this suit. (Apx: Exhibit B p4) The Texas Supreme Court has held that an

employer may make a “take it or leave it” offer to its at-will employees with

respect to arbitration of disputes as a condition to employment. In re Halliburton

Co., 80 S.W.3d 566, 572 (Tex. 2002); Hathaway v. General Mills, Inc., 711

S.W.2d 227 (Tex.1986).

AOF’s Offer of Employment, to which Appellee undisputedly agreed

provides, in pertinent part:

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 By accepting employment with AOF Services, LLC, I agree that any claim,
controversy, or other dispute relating to my employment, separation
from the company, or following separation from the company, shall be
resolved by arbitration, in lieu of jury trial or any other legal proceeding,
pursuant to the Federal Arbitration Act (Title 9, United States Code), and in
accordance with the provisions of the AOF Dispute Resolution Policy
(“DRP”), which I have received and been given an opportunity to read….”

(Axp: Exhibit B at p4) (emphasis added). The Dispute Resolution Policy

itself likewise includes a substantially identical arbitration provision. (Axp: Exhibit

B at p5) Appellee does not dispute that he agreed to the arbitration agreement or

that Appellee’s wrongful termination claim in the suit falls within the scope of

claims covered by the arbitration agreement. AOF thus met its initial burden of

showing that an arbitration agreement exists between the parties and that the

dispute in question falls within the scope of the agreement.

Texas law favors arbitration. In re FirstMerit Bank, N.A., 52 S.W.3d 749,

756 (Tex. 2001). When a party seeks to compel arbitration and proves a valid

arbitration agreement exists, a “presumption attaches favoring arbitration and the

burden shifts to the party resisting arbitration to establish a defense to

enforcement.” ReadyOne Industries, Inc. v. Flores, --- S.W.3d ---, No. 08-13-

00161-CV, 2014 WL 6982275 (Tex. App.—El Paso Dec. 10, 2014, no pet. h.).

Here, Appellee claims the arbitration agreement is unenforceable because it is

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 unconscionable. The burden of proving that a contract is unconscionable falls on

the party opposing the contract. In re Poly-Am., L.P., 262 S.W.3d 337, 348 (Tex.

2008); In re FirstMerit Bank, 52 S.W.3d at 756.

B. Appellee failed to prove that The Arbitration Agreement Is
Unconscionable
Appellee claimed several grounds of unconscionability in his response. The

trial court did not issue a memorandum opinion, and thus it is not clear on which

ground or grounds the court found the agreement unconscionable. AOF thus

addresses each ground asserted by Appellee. Two forms of unconscionability in

arbitration provisions are recognized in Texas: (1) procedural unconscionability,

which refers to the circumstances surrounding the adoption of the arbitration

provision, and (2) substantive unconscionability, which refers to the fairness of the

arbitration provision itself. Pilot Travel Ctrs., LLC v. McCray, 416 S.W.3d 168,

180 (Tex. App.—Dallas 2013, no pet.).

1. The Arbitration Agreement is a Bilateral Agreement to Arbitrate that
Applies Equally To AOF and Appellee

Appellee’s first argument is that the arbitration agreement is substantively

unconscionable because it is unfairly one sided. Substantive unconscionability of

an arbitration agreement refers to the fairness of the arbitration provision itself.

Pilot Travel Ctrs., LLC v. McCray, 416 S.W.3d 168, 180 (Tex. App.—Dallas

APPELLANT’S BRIEF -Page 14
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 2013, no pet.). Appellee’s argument is based solely to the arbitration agreement

itself, without any other supporting evidence.

Appellee argues, without authority or support, that only an employee’s

claims would be subject to arbitration, while “all claims that could ever be brought

by Defendant AOF” are excluded. This is contrary to the unambiguous language

of the arbitration agreement. The arbitration agreement provides that “any claim,

controversy, or other dispute relating to my employment, separation from the

company, or following separation from the company, shall be resolved by

arbitration.” This agreement applies equally to employer and employee.

The agreement has certain exceptions, but these exceptions again apply

equally to employer and employee, and are primarily for claims subject to

administrative procedures. Appellee has provided no evidence whatsoever to

support its claim that all claims by employers would be excluded by the agreement

– no legal authority, no examples, no affidavits.

The case Appellee relies on is wholly distinguishable and illustrates how an

agreement that a court found is one-sided is different from the AOF arbitration

agreement. In Royston, Rayzor, Vickery & Williams, L.L.P. v. Lopez, 2013 Tex.

App. LEXIS 7843 at *23 (Tex. App. – Corpus Christi, June 27, 2013), an attorney

engagement agreement provided that disputes about services provided under the

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 agreement would be subject to arbitration but a dispute over payment of services

would not. Id. at *2. That is two sides of the same coin, and it is thus not

surprising that, particularly in an attorney/client agreement where a fiduciary duty

is owed to the client, the court found this to be unfairly one-sided.

The opposite is true here. The arbitration agreement does not provide that

one type of claim is arbitrable for the employee but not for the employer. Thus,

Appellee failed to meet his burden of proving that the arbitration agreement is

substantively unconscionable.

2. The Arbitration Agreement Does Not Unfairly Limit Discovery

Appellee next argues that the arbitration agreement is substantively

unconscionable because it unfairly limits his discovery. The relevant provision of

the arbitration agreement states the following:

“Discovery – The arbitrator will permit and set deadlines for the completion
of the following discovery: up to 15 Interrogatories per party, including
subparts; up to 25 Requests for Production per party, including subparts;
depositions of the parties to the proceeding and any technical experts
designated to testify; third party document subpoenas as appropriate; any
other discovery to which the parties agree.” (Apx: Exhibit B at p6)

This limitation on discovery is appropriate and fully enforceable. Indeed,

the Texas Supreme Court held that “limited discovery is one of arbitration’s ‘most

distinctive features.’” In re Fleetwood Homes of Texas, L.P., 257 S.W.3d 692, 695

(Tex. 2008) (per curium). The Court further noted that the argument that

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 “‘streamlined’ discovery makes arbitration unconscionable would nullify almost

all arbitration agreements. We hold that arbitration's limits on discovery for both

parties does not make it unconscionable.” Id. Likewise, the Supreme Court in

Poly-America held that discovery limits of 25 interrogatories and 25 requests for

production in the arbitration agreement at issue in that case were not substantively

unconscionable.

Appellee agreed to the discovery limits in the arbitration agreement as a

condition to his employment with AOF, and the discovery limits apply bilaterally.

Appellee’s so-called evidence in support of his response to the motion to compel in

which Appellee’s counsel states that in these types of cases he sends

“approximately 85 requests for production” and “21 interrogatories with permitted

subparts” (see Apx: Exhibit F p1) is no evidence at all.

Appellee fails to identify and provide specific evidence as to why the

Appellee cannot reasonably meet his proof burden based upon the discovery that is

provided for in the arbitration agreement. Appellee fails to provide specific

evidence of what information Appellee reasonably must obtain from AOF in the

additional 60 requests for production and the additional 7 Interrogatories that

Appellee’s attorney allegedly normally serves in this type of case, and why that

information is not otherwise reasonably obtainable through deposition testimony,

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 or any other discovery that the parties could agree to. Furthermore, Appellee fails

to provide any evidence that Appellee cannot reasonably obtain the information he

needs to meet his burden of proof under the discovery limitations in the arbitration

agreement.

3. The Fee-Splitting Agreement In The Arbitration Agreement Is Fair
And Reasonable

Appellee’s final argument is that the arbitration agreement is substantively

unconscionable because it requires the Appellee to pay prohibitively excessive

arbitration costs. The arbitration agreement between AOF provides, in relevant

part:

“…An initiating Team Member will pay the first $100 in filing fees to
the AAA and the Company will pay the portion of filing fees that
exceed $100, plus any other administrative fees or costs (other than
the arbitrator’s compensation). The arbitrator’s compensation will be
paid 20% by the Team Member and 80% by the Company.” (Apx:
Exhibit B at p6)
* * *
“…The arbitrator may award attorney’s fees and costs of
arbitration to a prevailing party….” (Apx: Exhibit B at p6)

In Texas, fee-splitting provisions in employment arbitration agreements are

not per se unconscionable. Poly-America, 262 S.W.3d at 355-56. The

complaining party opposing arbitration must introduce some evidence that it will

incur arbitration costs that would deter enforcement of statutory rights in the

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 arbitral forum. Id. at 356 (emphasis added). Appellee has not provided such

evidence.

Mere “risk” that a claimant may have to pay prohibitive costs is too

speculative to justify the invalidation of an arbitration agreement. Poly-America,

262 S.W.3d at 356 (citing Green Tree Fin. Corp.—Ala. v. Randolph, 531 U.S. 79,

91 (2000)). In Poly-America, the Supreme Court found the arbitration clause

between an employer and employee that provided for fees to be split equally was

enforceable because: (1) the record contained no evidence of the employee’s likely

share of arbitration costs and (2) the arbitration agreement specifically provided

that the arbitrator could modify unconscionable terms. Id.

In McCray, the court considered an employment arbitration provision that

provided the costs and fees charged by the arbitrator would be borne equally by the

parties, but, like the arbitration agreement here, allowed for discretion by the

arbitrator to “reapportion the arbitration fees (except attorney fees) and costs in a

manner which the arbitrator deems equitable.” Additionally, the arbitration

agreement in McCray limited fees borne by the employee to no more than one-half

of the fees and costs. Here, the agreement is even more favorable to Appellee,

providing that AOF shall pay 80% of the fees and costs.

The court in McCray found that there was no evidence on the record
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 indicating that the appellees did not have the financial ability to pay a portion of

the arbitrator’s fees or that arbitration would be more costly than litigation in state

court. McCray, 416 S.W.3d at 181. Consequently, the court concluded that the

employees failed to establish a defense of unconscionability and that the arbitration

provision should be enforced. Id. Likewise, as is discussed in detail below,

Appellee failed to provide competent evidence that he does not have the financial

ability to pay any portion of the arbitration fees or that the cost of litigation in state

court would be less costly.

Even if a plaintiff provides competent evidence to show the likely costs of

arbitration, he or she must also provide evidence demonstrating the likelihood of

incurring such costs. In re Weeks Marine, Inc., 242 S.W.3d 849, 859 (Tex. App.—

Houston [14th Dist.] 2007, mand. denied) (citing Green Tree, 531 U.S. at 92

(“where, as here, a party seeks to invalidate an arbitration agreement on the ground

that arbitration would be prohibitively expensive, that party bears the burden of

showing the likelihood of incurring such costs”). In In re Weeks Marine, the

agreement provided for subsequent allocation of fees between the parties after

Weeks Marine paid the filing fee and any deposit for arbitrator compensation. Id.

at 860. The Houston Court of Appeals held that the fee-splitting agreement was

not unconscionable and the arbitration agreement was enforceable. Id.

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 In support of his argument, Appellee offers the affidavits of Javier Espinoza

and Ronald Santorsola (Axp: Exhibits F and G).

The Espinoza affidavit is offered as evidence of the potential arbitrator fees

that might be incurred by the parties in the arbitration of this case, alleging that the

invoice attached to the affidavit is representative of the arbitration costs that would

be incurred in this case.

However, the Espinoza affidavit fails to establish what the anticipated

arbitrator’s fees would be and what Appellee’s share of the anticipated arbitration

costs would reasonably be anticipated to be in the arbitration of his claims with

AOF. There are several reasons the Espinoza affidavit fails to establish what the

anticipated arbitrator’s fees in this case would be and what Appellee’s anticipated

share of the anticipated arbitration costs in the arbitration of his claims with AOF

would be.

The Espinoza affidavit states that the arbitration of the Christine Torres v.

Stagg Restaurants case to which the attached aribtors’ invoice is attached was for

an arbitration that lasted only one day, stating in relevant part:

“…The arbitration took place in San Antonio, TX in the
spring of 2013 and lasted only one day.” (Apx: Exhibit F at
p1)

But this sworn statement directly conflicts with the arbitrator’s invoice which

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 identifies anticipated arbitrator’s fees and costs for three days of arbitration

(identified on the invoice as the days of 01/22/2013, 01/22/2013, and 01/23/2013),

stating in relevant part:

“..Your Share of the Neutral Compensation Deposit
covering 3 days of Hearing…..7,500” (Apx: Exhibit F at p2)

Additionally, the Invoice/Statement reflects anticipated arbitrator’s charges

of $7,500 for 24 hours of Study.

The Invoice/Statement attached to the Espinoza affidavit appears to be only

a cost estimate, or a request for a deposit for a three day arbitration and a deposit

for 24 hours’ worth of “Study” by the arbitrator. The Invoice/Statement on its

face is not a representation of the actual costs incurred in the arbitration of the

Christine Torres v Stagg Restaurants case.

The Espinoza affidavit states that the “Total cost for the entire arbitration,

from start to finish, was $20,225.” This large figure is not represented on the

attached Invoice/Statement anywhere, and based upon the Invoice/Statement it

cannot be accurate or valid for the actual charges incurred for a one day arbitration,

which could only reasonably be guessed at being a third of the $17,250 figure of

the Invoice/Statement. There is no evidence that 24 hours of “Study” for the

arbiter would be applicable to the arbitration of Appellee’s claim against AOF.

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 Not only does the Espinoza affidavit completely misrepresent the arbitrator’s

actual charges for a 1 day arbitration based on the attached Invoice/Statement,

more critically it fails to ever state: a) that the arbitration of Appellee’s claims

against AOF in this dispute will require 3 days arbitration and 24 hours of “Study”

by the arbitrator so that an arbitrator’s fee in excess of $20,000 is reasonably

anticipated; and b) that the Appellee will likely actually incur arbitration costs

exceeding $5,000.

The Espinoza affidavit states that Appellee’s case against AOF is very

similar to the Christine Torres v Stagg Restaurants case, which at best implies that

it would require a 1 day arbitration, since it identifies the cases as being similar,

and not a 3 day arbitration. Based on the Invoice/Statement, the arbitrator’s fees

for a 1 day arbitration in the Christine Torres v Stagg Restaurants case could not

possibly be the $20,225 asserted in the affidavit. The Invoice/Statement does not

state what the arbitrator’s fees actually were for a 1 day arbitration in the Christine

Torres v Stagg Restaurants case.

What the Espinoza affidavit specifically states regarding the anticipated

arbitrator’s fees is as follows:

“If Mr. Santorsola is required to arbitrate his case through
a similar arbitration association, the cost for the arbitration
and litigation process will reasonably exceed $5,000, if he is
require to pay approximately twenty percent of the costs”.

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 (Apx: Exhibit F at p1)

Espinoza’s statement in the affidavit alleges that the entire cost of the arbitration

and litigation process will reasonably exceed $5,000, but fails to specifically allege

what Mr. Santorsola’s portion of those costs would be. The affidavit fails to

specifically state what Mr. Santorsola’s anticipated portion of the anticipated

arbitrator’s fees would be.

In additional support for its argument, Appellee also submits the affidavit of

Ronald Santorsola (Apx: Exhibit G), which states in relevant part:

“…If it is determined that I must bring my lawsuit against

my employer in arbitration, and risk having to pay over

$5,000 in arbitrator fees, I will probably not continue with

my claim. This risk is too great for me and I do not have

that type of money…” (Apx: Exhibit G at p1)

Santorsola’s affidavit does not state that he reasonably anticipates incurring $5,000

in arbitrator’s fees in the arbitration of his claim against AOF.

Neither the Espinoza nor the Santorsola affidavits state what the actual

anticipated arbitrator’s costs Santorsola reasonably anticipates incurring would be

for the arbitration of his claim against AOF. The record fails to offer any

evidence of what the actual anticipated arbitrator’s costs Santorsola reasonably

anticipates incurring would be.

The record establishes that Appellee has failed to meet his burden of proof to

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 establish Appellee’s likely share of arbitration costs.

Finally, the arbitration agreement authorizes the arbitrator to award

arbitration fees and costs against a party. In relevant part, the arbitration

agreement states:

“…The arbitrator may award attorney’s fees and costs of
arbitration to a prevailing party…” (Apx: Exhibit F at p6)

Because the arbitrator is authorized to award Appellee his arbitration costs if he

prevails in the arbitration, Appellee may not be responsible for any arbitrator’s fees

at all in the arbitration.

The record establishes as a matter of law that Appellee has failed to meet his

burden of proof to establish that the arbitration agreement is substantively

unconscionable because Appellee might incur arbitrator’s costs that would deter

enforcement of statutory rights in the arbitral forum.

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 CONCLUSION/PRAYER

For the reasons stated herein, AOF requests this Court to find that the trial

court erred by finding that 1) the arbitration agreement is unconscionable, and 2)

that the arbitration agreement is unenforceable. AOF requests this Court to find

that the trial court erred by denying the Plea in Abatement and Motion to Compel

Arbitration.

Accordingly, AOF respectfully requests that the order denying the Plea in

Abatement and Motion to Compel Arbitration be reversed. In the alternative, AOF

prays that this Court remand this cause to the trial court for further proceedings

consistent with its opinion on the issues presented herein. AOF further requests

that this Court award it its costs of court on appeal.

AOF further prays for such other and further relief, both general and special,

at law or in equity, to which it is justly entitled, and for which it will ever pray.

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 Respectfully Submitted,

LAW OFFICES OF PAUL C. ALLRED

Paul C. Allred
State Bar Number: 001102000

Campbell Centre II
8150 North Central Expressway, Suite 700
Dallas, Texas 75206
Telephone Number (214) 449-9496
Facsimile Number (214) 276-1325

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

The undersigned attorney at law, does hereby certify that a true and correct
copy of the foregoing attached instrument has been served upon the Appellee,
Ronald Santorsola by and through his respective attorney of record on this the 13th
day of February, 2015.

Paul C. Allred

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 APPENDIX

Exhibit A: Defendant’s Original Answer, Plea in Abatement, and Motion
to Compel Arbitration

Exhibit B: Affidavit for Admission of Business Records

Exhibit C: Plaintiff’s Response in Opposition to Defendants Motion to Compel
Arbitration, Request for Evidentiary Hearing, and Motion for
Sanctions

Exhibit D: Court’s Finding of Unconscionability

Exhibit E: Order Concerning Defendant’s Motion to Compel Arbitration

Exhibit F: Affidavit of Javier Espinoza

Exhibit G: Affidavit of Ronald Santorsola

APPELLANT’S BRIEF -Page 28
D/921498v1
 Appellant’s Brief

Exhibit A

 NO. 25,609

RONALD SANTORSOLA § IN THE DISTRICT COURT
Plaintiff, §
§
V. § 25TH JUDICIAL DISTRICT
§
AOF SERVICES, LLC §
Defendant. § OF GONZALES COUNTY, TEXAS

DEFENDANT'S ORIGINAL ANSWER, AND

PLEA IN ABATEMENT, and MOTION TO COMPEL ARBITRATION

NOW COMES Defendant, AOF Services, LLC, named Defendant in the above-entitled

and numbered cause, and files this Original Answer, Plea In Abatement, and Motion To Compel

Arbitration, and shows the Court:

I.

PARTY IDENTIFICATION INFORMATION

AOF Services, LLC has not been issued a driver's license. AOF Services, LLC has not

been issued a Social Security number.

II.

PLEA IN ABATEMENT – ARBITRATION

1. Plaintiff and Defendant entered into a written agreement whereby they agreed that

the claims Plaintiff has plead in this lawsuit would be subject to binding

arbitration.

2. The Dispute Resolution Policy contained in that certain Offer of Employment

document executed by the parties on June 13th, 2013 (a true copy of which is

attached hereto as Exhibit “A” and incorporated hereinafter for all purposes),

Defendant’s Original Answer,

Plea in Abatement, and Motion To Compel Arbitration Page: 1

 states in relevant part:

“By accepting employment with AOF Services LLC, I
agree that any claim, controversy or other dispute relating
to my employment, separation from the company, or
following separation from the company, shall be resolved
by arbitration, in lieu of a jury trial or any other legal
proceeding, pursuant to the Federal Arbitration Act (Title 9,
United States Code), and in accordance with the provisions
of the AOF Services LLC Dispute Resolution Policy
(“DRP”), which I have received and been given an
opportunity to read…”

3. Accordingly, AOF Services, LLC requests that this suit be abated and that the

dispute between the parties be subjected to arbitration between the parties.

III.

MOTION TO COMPEL ARBITRATION

4. The allegations in paragraphs 1, 2 and 3 are incorporated herein as if set forth at

length.

5. A valid written arbitration agreement exists between the parties and covers the

claims presented in this lawsuit.

6. Pursuant to Section 171.021(a) of the Texas Civil Practice and Remedies Code,

AOF Services, LLC requests that the Court order the parties to arbitrate the claims

presented in this suit and to stay this proceeding pending the completion of the

arbitration proceeding.

IV.

GENERAL DENIAL

7. Subject to the forgoing Plea in Abatement and Motion to Compel Arbitration,

Defendant AOF Services, LLC denies each and every allegation of Plaintiff's

Original Petition, and demands strict proof thereof as required by the Texas Rules

Defendant’s Original Answer,

Plea in Abatement, and Motion To Compel Arbitration Page: 2

 of Civil Procedure.

IV.

PRAYER

Defendant prays the Court will abate this lawsuit and order the parties to arbitrate the

claims herein; furthermore and after notice and hearing or trial, Defendant prays that the Court

will enter judgment in favor of Defendant, awards Defendant the costs of court, attorney's fees,

and such other and further relief as Defendant may be entitled to in law or in equity.

Defendant’s Original Answer,

Plea in Abatement, and Motion To Compel Arbitration Page: 3

 Respectfully submitted,

By:
Paul C. Allred
Texas Bar No. 01102000

8150 N. Central Expressway, Suite 700
Dallas, TX 75206
Tel. (214) 448-9496
Fax. (214) 276-1325
paulallred@msn.com

Attorney for Defendant
AOF Services, LLC

FIAT:

A hearing shall be heard on Defendant’s Plea in Abatement and Motion To Compel Arbitration
on _________________ at ____ o’clock ___m..

_____________________________
Judge Presiding

CERTIFICATE OF SERVICE

I certify that on April 11th, 2014, a true and correct copy of Defendant's Original Answer
and Plea in Abatement was served on Plaintiff’s attorney of record, Javier Expinoza, 503. E.
Ramsey, Suite 103, San Antonio, TX 78216.

Paul C. Allred

Defendant’s Original Answer,

Plea in Abatement, and Motion To Compel Arbitration Page: 4

 EXHIBIT “A”

Defendant’s Original Answer,

Plea in Abatement, and Motion To Compel Arbitration Page: 5

 Appellant’s Brief

Exhibit B

EXHIBIT A

 Appellant’s Brief

Exhibit C

 Appellant’s Brief

Exhibit D

 Appellant’s Brief

Exhibit E

 CAUSE NO. 25,609

RONALD SANTORSOLA, § IN THE DISTRICT COURT

§

Plaintiff §

§

v. § 25 th JUDICIAL DISTRICT
§
AOF SERVICES, LLC §
§
Defendant. § GONZALEZ COUNlY, TEXAS

ORDER CONCERNING DEFENDANT'S MOTION TO COMPEL ARBITRATION

On this the 9th day of May 2014 came to be heard Defendant's Motion to Compel

Arbitration. The Court having considered the Motion and all applicable arguments, case law and

evidence is of the opinion that the following Order is appropriate and necessary.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Defendant's

Motion to Compel Atbitration is hereby in all things DENIED.

SIGNED and ENTERED this
,\" J\
th~\) day of \).\.L ~1t.( ,2014.

HON. JUDGE PRESIDING

PAUL C. ALLRED
8150 N. Central Expressway, Suite 700
Dallas, TX 75206

14
 Appellant’s Brief

Exhibit F

 Appellant’s Brief

Exhibit G