OPINION
Appellants Lucchese Boot Company, Lucehese, Inc., Jose Angel Velarde, and Jose Angel Valadaz seek reversal of the trial court’s order denying its motion to compel arbitration against former employee Hector Rodriguez. We reverse and remand.
BACKGROUND
In 2007, Rodriguez filed a non-subscriber negligence suit against Lucchese after allegedly suffering work-related injuries. Lucchese initially sought to compel arbitration against Rodriguez under the terms of its Area Brands Texas Injury Benefit Plan (the Benefit Plan). The trial court denied Lucchese’s motion to compel Rodriguez to arbitrate. Lucchese filed for a writ of mandamus compelling arbitration. We denied the writ on the basis that the Benefit Plan’s arbitration agreement was illusory. In re Lucehese Boot Co.,
Lucchese next sought to compel arbitration based on a different agreement contained in its Problem Resolution Program (the Program). The trial court struck Lucchese’s motion on the basis that Luc-chese had either waived, or was estopped from asserting, its right to seek arbitration after initially seeking it under the Benefit Plan. Lucchese appealed, and we reversed the. trial court’s strike order and reinstated Lucchese’s motion, holding that Lucchese did not waive its right to seek arbitration and that it was not estopped from offering alternate bases for its arbitration request. Lucchese, Inc. v. Rodriguez,
DISCUSSION '
In one issue, Appellants maintain the trial court erred by failing to compel arbitration, either because questions of the Program’s enforceability were reserved for the arbitrator alone or because Rodriguez cannot present any valid contractual defenses against enforcement.
Standard of Review
We review mixed questions of fact and law in arbitration cases such as this for abuse .of discretion, deferring to. the trial court’s factual determinations and reviewing pure questions of law de novo. Delfingen US-Tex., L.P. v. Valenzuela,
“A party seeking to compel arbitration must (1) establish the existence of a valid arbitration agreement; and (2) show that the claims asserted are within the scope of the agreement.” Delfingen,
Relevant Contract Language
To better ground our analysis, we set out the following relevant excerpts of the Problem Resolution Program below:
Agreement to Submit Disputes to Arbitration. The Company and the Employee ... recognize that differences of opinion can, from time-to-time, arise among individuals, including between an employee and his employer, and that, ultimately, some such disagreements can only be fairly resolved by a neutral decision-maker. The Company believes, however, that resort to a neutral Arbitrator is a legally-sanctioned alternative to the judicial system which is fairer to the parties, yields a speedier final resolution, and is less expensive to both the Employee and the Company. The Company therefore establishes this Problem Resolution Program ■ (the "‘Program’), waives its right to a trial before a judge or a jury in the event of any Covered Employment Dispute as defined below (hereinafter, ‘Covered Dispute’), and agrees to submit any such dispute to final and binding arbitration. In exchange for this waiver of its rights, the Company requires, as a condition of employment/continued employment, that each of its Employees waive his right to a trial before a judge or a jury in the event of any Covered Dispute and agree to submit such dispute to final and binding arbitration. In other words, in the case of a Covered Dispute, the Company and the Employee agree to submit the Dispute to binding arbitration, unless both the Employee and the Company waive , such a right in writing prior to the initiation of any litigation arising out of said Covered Dispute.
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Covered Disputes, Covered Disputes which are subject to the exclusive provisions of the Program include only those which involve legally-protected rights which the Employee may now or in the future have against the Company or its officers, directors, shareholders, employees, or agents in their personal or official capacities, as well as any claims which the Company may now or in the future have against the Employee, including, but not limited to, matters arising out of the application for employment or an employment termination, except as expressly excluded under the heading of “Claims Not Covered” below:
The disputes covered by the Program include, but are not limited to:
• claims for wrongful failure to hire;
• claims or breach of any contract, covenant, or warranty (express -or implied);
• tort claims (including, but not limited to, claims for physical, mental or psychological injury, without regard to whether such injury was allegedly sustained in the course and scope of employment, and claims for defamation);
• claims for wrongful termination (including, bqt not limited to, retaliatory discharge claims under chapter 451 of the Texas Labor Code);
• claims for harassment, including, but not limited to, sexual harassment;
• claims for discrimination (including, • but not limited to, claims based on race or color, national origin, religion, sex, age, medical condition or disability);
• claims for benefits under any employee benefit plans sponsored by the Company (after- exhausting administrative remedies under the terms of such plans); and ■
• claims for violations of any other noncriminal federal, state, or other governmental law, statute, regulation or ordinance.
This' includes claims which are brought by or against Employee or his representatives, successors, spouse or heirs.
Claims Not Covered. The only claims or disputes not covered by the Program are as follows:
1. any claim by Employee for benefits under a plan or program which provides its own arbitration procedure;
2. any criminal complaint or proceeding;
3. restitution by an employee for a criminal act for which he has been found guilty, has pleaded guilty or no contest or nolo contendere, or for which he has been subject to any kind of deferred adjudication program;
4. any claim by the Company for in-junctive or other equitable relief for Employee’s alleged violation of contract, covenant against competition, unfair competition or the use or disclosure of trade secrets or other confidential information;
5. any claim for benefits arising under the workers’ compensation laws of any state;
6. any claim for unemployment compensation; and
7. any dispute involving- Employee’s work schedule, vacation, sick days, work assignments, or shift assignments, and any disagreement with co-workers other than those involving Covered Disputes as described above.
Neither Employee nor the Company may submit items 1 through 7 above to arbitration under this Program.
Procedures for Conduct of Arbitra-tions. Except to the extent that any provision of said Rules is inconsistent with the Program provisions set forth in this document or excépt where a provision of said Rules is waived in a writing signed by representatives of both the Company and the Employee, arbitra-tions under this Program shall be con- . ducted pursuant to the TAMS Employment Arbitration Rules,
I.
ARBITRABILITY AND Sc,OPE
A.
Who Decides If an Arbitration Agreement Exists?
In its first sub-issue, Appellant argues that the trial court erred by not compelling arbitration because the agreement itself strips away the trial court’s ability to decide whether the agreement’s terms are valid. We disagree.
Ordinarily, the trial court retains the power to rule on so-called “gateway” issues such as whether an- arbitration agreement exists or is enforceable. IHS Acquisition No. 131, Inc. v. Iturralde,
Lucchese maintains that the Program’s incorporation by reference of the TAMS’ procedural rules — which allow an arbitrator to rule on the issue of his own jurisdiction
Even so, the “majority view does not mandate that arbitrators decide arbi-trability in all cases where an arbitration clause incorporates” an arbitration organization’s procedural rules by reference. Haddock v. Quinn,
By contrast, here, the agreement establishes . the scope of arbitrable issues as consisting of a certain class of “Covered Disputes” which “include only those [disputes] which involve, legally-protected rights which the Employee may now or in the future have against the Company or its officers, directors, shareholders, employees, or agents in their personal or official capacities, as well as any claims which the Company may now or in the future have against the Employee[.]” Further, while the agreement purports that a list of disputes contained in the Covered Disputes section is purely illustrative, the agreement also goes on to explicitly exclude a large class of “Claims Not Covered” that “[n]either Employee nor the Company may submit ... to arbitration under this Program[,]” including 'inter alia restitution for an employee’s criminal acts, “any claim by the Company for injunctive or other equitable relief for Employee’s alleged violation of contract ... [,] ” or “any dispute involving Employee’s work schedule, vacation, sick days, work assignments, or shift assignments^]”
In light of the arbitration agreement’s narrow application, incorporation of the TAMS rules giving an arbitrator the ability to review his own jurisdiction or reassess an agreement’s validity is not dis-positive. Appellant placed substantive restraints on the arbitrator’s power by limiting, the scope of the arbitration agreement to include only certain enumerated disputes and explicitly precluding submission of other disputes to arbitration. We presume as a matter of law that the trial court retained the power to decide gateway issues absent clear, explicit evidence to the contrary. Iturralde,
Simply put, the TAMS rules may give an arbitrator the ability to decide if an agreement is valid, but the terms of the agreement itself govern whether the arbitrator gets to decide this question in the first instance. Here, the parties did not express a clear intent to submit gateway issues to an arbitrator, and the trial court properly retained jurisdiction to rule on arbitrability.
B.
Proper Parties to Arbitration
We next discuss whether the arbitration agreement applies only to Luc-chese, or to defendants Velarde and Vala-daz as well. Rodriguez maintains that the trial court’s judgment was proper as to Velarde and Valadaz, since neither of them were parties to the contract between Luc-chese and Rodriguez. Lucchese counters that Velarde and Valadaz are entitled to enforce the arbitration agreement as third-party beneficiaries. We agree.
Generally, “parties must sign arbitration agreements before being bound by them.” In re Rubiola,
Rodriguez correctly cites In re Merrill Lynch Trust Co. FSB,
Velarde and Valadaz are proper parties to the arbitration agreement, and their ability to seek arbitration rises and falls in tandem with Lucchese.
II.
CONTRACT
Having dealt with the gateway issues, we next turn to the substantive issues. In
A.
Does An Agreement Exist?
In defense of the trial court’s judgment, Rodriguez raises two alternate reasons why a binding arbitration contract never formed between the parties.
1.
Illusoriness
We first address Rodriguez’s illu-soriness point. Rodriguez maintains that the language of the agreement gives Luc-chese the unilateral right to terminate the agreement at any time, rendering Luc-chese’s' promise to arbitrate illusory and causing contract formation to fail for lack of consideration. However, Rodriguez cites to and directs his argument entirely at the arbitration agreement from the Benefit Plan, which is not the subject of this appeal. Here, we review only the arbitration agreement set out in the Problem • Resolution Program. Rodriguez makes no reference to the Program’s arbitration language in his brief. , Because Rodriguez failed .to explain how the language in the Program’s arbitration agreement rendered it. illusory, we find .that Rodriguez has waived his illusoriness, defense on appeal.
2.
Meeting of the Minds
Rodriguez next maintains that the -trial court’s judgment should be upheld because Appellant failed to establish that all parties had a “meeting of the minds” on all essential terms of the arbitration agreement. Tied in with this argument is his assertion that the terms of the arbitration agreement are ambiguous. We address these two-points jointly.
“A meeting of the minds is necessary to form a binding contract.” David J. Sacks, P.C. v. Haden,
Rodriguez avers that’the essential terms of the arbitration agreement are too ambiguous to determine from the writings in the record; thus, no contract could have ever formed because the parties must not have mutually understood the other’s terms. .In making this argument, Rodriguez does not maintain that the Program’s arbitration agreement is ambiguous on its face. Rather, he contends that the Pro: gram’s arbitration agreement becomes ambiguous when read in light of the Benefit Plan’s arbitration agreement, since the two agreements irreconcilably conflict on material terms such as who will conduct an arbitration: TAMS or the American Arbitration Association.
We first note that unless the Benefit Plan was incorporated by reference into the Program Agreement, it constitutes parol evidence that must be excluded in contradicting the Program Agreement’s terms unless -the Program Agreement is ambiguous. In determining whether a contract is ambiguous, we first look only to the four comers of the document proffered and to other texts incorporated therein by reference. McDaniel Partners, Ltd. v. Apache Deepwater, L.L.C.,
Here, the Program. Agreement is not ambiguous on its face. Its terms are definite, ascertainable, and not subject to more than one reasonable interpretation. Per the terms of the Program Agreement at bar, “tort claims, (including, but not limited to, claims for physical, mental or psychological injury, without regard to whether such, injury was allegedly sustained in the course and scope of employment ...)” are subject to arbitration under the terms set out in the Program Agreement. It is undisputed that Rodriguez’s pleadings allege tort claims that would fall within the Program Agreement’s arbitral scope.
Further, the Program Agreement’s language never explicitly mentions or incorporates the Benefit Plan’s arbitration agreement by reference so as to create conflict on material terms. As such, the terms of
A copy of the Benefit Plan’s arbitration agreement does not appear in this record. Although the Defendants’ Amended Motion to Compel Arbitration makes reference to attached Exhibits D, E, and F, which are the “Area Brands Texas Injury Benefits Summary Plan Description and Injury Benefit Plan,” no such exhibits are actually attached. Absent that evidence, neither we nor the trial court can definitively establish whether Rodriguez’s tort claim would fall within the Program Agreement’s coverage exclusions. Even if Rodriguez could establish the terms of the Benefit Plan, the coverage exclusion is limited only to “any claim by Employee for benefits under a plan or program which provides its own arbitration procedure.” Here, there is no indication that Rodriguez actually “claim[ed] ... benefits under a plan or program” administered by Luc-chese. Instead, the record evidence shows this is only a standard tort claim.
In short, Lucehese presented evidence of an unambiguous, presumptively valid arbitration agreement that explicitly embraces tort claims' against the company. Rodriguez, in turn, failed to provide evidence that the claims he presented would otherwise be excluded from coverage because they were subject to the Benefits Plan. As such, we find that both prongs of the arbitration test have been met: an arbitration agreement exists, and the dispute between the parties' falls within its ambit. See Delfingen,
B.
Defenses Against Enforcement
Having determined that a valid arbitration contract formed, we next consider Rodriguez’s arguments that the trial court was justified in denying Lucchese’s motion to compel because he presented valid affirmative defenses to enforcement.
1.
Unconscionability
In the trial court and on appeal, Rodriguez argues the contract should not be enforced against him because its terms are unconscionable. Lucehese contends that Rodriguez provided insufficient evidence to establish that - arbitration agreement was unconscionable. Thus, the trial court’s summary judgment denial could not have properly rested on those grounds. We agree.
Applicable Law
“Agreements to arbitrate disputes between employers and employees are generally enforceable under Texas law; there is nothing per se unconscionable about an agreement to arbitrate employment disputes!.]” In re Poly-America, L.P.,
“Unconscionability of an arbitration 'agreement may exist in one or both of
We measure unconscionability in light of the totality of the circumstances and' from the point the contract formed. Delfingen,
Analysis
On appeal, Rodriguez-does not argue that the arbitral forum is somehow inadequate or unfair. Instead, he focuses exclusively on the process by which Luc-chese obtained his consent to. arbitration. As such, Rodriguez presents only procedural unconscionability grounds in support of the trial court’s judgment and not substantive unconscionability grounds. We focus our analysis accordingly.
Rodriguez maintains that we should affirm the trial court’s judgment because Lucchese’s “unusually unclean hands,” as demonstrated by the fact it presented an alternate arbitration agreement after being unable to compel arbitration under another agreement, strongly insinuates wrongdoing that rises to the level of procedural unconscionability. But the fact that Lucchese may have later “discovered” another on-point arbitration agreement after we struck down the first agreement is irrelevant to the procedural unconsciona-bility analysis. Our inquiry focuses solely on the surrounding circumstances at the time of contract formation. Delfingen,
Here, Rodriguez provided no independent evidence regarding the circumstances of the contract formation process. Instead, he points to inconsistencies in Hilda Matthews’ deposition testimony regarding her understanding of which arbitration agreement applied in the event of a workplace injury — the Benefits Plan or the Problem Resolution Program — as proof that Lucchese lured him into entering into the Program’s arbitration agreement by having Matthews purportedly misrepresent' the nature of the agreement and tell him it was an unimportant document. These testimonial inconsistencies are not enough to establish procedural unconscion-ability beyond mere conjecture, particularly when viewed in light of the fact that a signed acknowledgment page bearing Rod-' riguez’s signature appears in the record. This suggests that even if Matthews misrepresented the terms of the agreement,
2.
Waiver and Estoppel
Finally, Rodriguez maintains that we can uphold the trial court’s judgment on the basis that Lucchese waived its ability to compel arbitration under the Program when it already attempted to unsuccessfully compel arbitration under the Benefit Plan. We have already rejected Rodriguez’s waiver and estoppel points in a previous appeal, and decline to further address these merits of these issues under law of the case.
The law of the case doctrine holds that questions of law decided in one appeal govern the ease throughout subsequent stages' of litigation, including later appeals. Justice Bail Bonds v. Samaniego,
We previously decided that neither waiver nor estoppel precluded Lucchese from moving to compel arbitration when we reversed the trial court’s strike order. See Rodriguez,
CONCLUSION
Appellant established the existence of a binding.arbitration agreement not subject to any valid defenses. The trial court erred by failing to enforce this agreement.
We reverse the trial court’s judgment and remand for further proceedings.
Barajas, Senior Judge (Sitting by' Assignment)
Notes
. Appellant’s brief also addresses the applicability of the FAA to this dispute and Rodriguez’s constitutional challenge to the FAA under the Tenth Amendment to the United States Constitution. Rodriguez’s brief raises neither of these points. We agree that the FAA applies to this case because there is evidence in the record to show that Lucchese engages in interstate commerce. See Vista Quality Mkts. v. Lizalde,
. TAMS Rule A-8 provides in part: .
A-8 Jurisdiction
(a) The arbitrator shall have the power to rule on the issue of jurisdiction, including any objection with respect to the existence, scope or validity of the arbitration agreement.
(b) The arbitrator shall have the power to determine the existence or validity of a contract which contains an arbitration clause.
. We recognize that the Fifth Circuit, in interpreting a contract under Texas law, appears to have held that under this State’s law, mere incorporation by reference of arbitration rules “presents clear and unmistakable evidence that the parties agreed to arbitrate arbitrability." Petrofac, Inc. v. DynMcDermott Petroleum Operations Co.,
. For the purposes of the remainder of this opinion, we will refer to the appellants collectively as "Lucchese.”
. As we stated previously, the trial court should compel arbitration where a movant establishes (1) thé existence of a valid arbitration contract and (2) that a claim falls within . the scope of that contract. . Iturralde,