in Re Whataburger Restaurants Llc, 645 S.W.3d 188

Background

In Feb. 2013 Yvonne Cardwell sued Whataburger for a workplace injury; Whataburger moved to compel arbitration under a mandatory Arbitration Policy contained in its Employee Handbook.
Cardwell signed an Acknowledgment listing the Handbook and the Arbitration Policy separately; the Handbook generally stated it could be modified at will, but the Arbitration Policy expressly limited Whataburger’s ability to amend (30 days’ notice; no unilateral amendment once the facts giving rise to a claim have occurred) and extended arbitration beyond termination.
The trial court initially denied Whataburger’s motion; the court of appeals reversed, the Texas Supreme Court remanded for consideration of Cardwell’s remaining arguments (including that the Policy was illusory).
After remand Whataburger filed a supplemental motion; the trial court denied it in August 2018 but the trial court clerk failed to give required notice. Whataburger did not learn of the order until 153 days later and missed the 20-day accelerated appeal window.
The trial court later found Whataburger had not received notice within 90 days; the court of appeals denied mandamus relief. Whataburger sought mandamus in the Texas Supreme Court, which heard the case and addressed the merits.

Issues

Issue	Plaintiff's Argument (Cardwell)	Defendant's Argument (Whataburger)	Held
Availability of mandamus when clerk fails to give notice and appellate right is lost	Cardwell: equitable principles; Whataburger was not diligent and should have checked with the court after hearing	Whataburger: clerk has duty to notify; it acted promptly once it learned of the order and was deprived of its statutory appeal	Mandamus available — clerk’s failure deprived Whataburger of an adequate appellate remedy and Whataburger acted promptly
Whether the Arbitration Policy is illusory because the Handbook allows unilateral modification	Cardwell: Acknowledgment says Handbook provisions may be modified at any time, and the Policy is contained in the Handbook, so the promise is illusory	Whataburger: Policy itself contains express limits on amendment and is distinguished from the rest of the Handbook; it is a stand‑alone, binding commitment	Policy not illusory — read in context the Policy limits employer modification and is a separate binding promise
Whether acceptance/continuation-of-employment language makes arbitration dependent on at-will employment (illusory)	Cardwell: Arbitration is conditioned on continued at-will employment, so employer could avoid performance by terminating employment	Whataburger: Language is acceptance-by-continued-employment (like Halliburton); Policy expressly extends beyond termination, providing mutual promises and consideration	Not illusory — language mirrors Halliburton; agreement accepted by continued employment and extends beyond termination
Appropriate remedy (compel arbitration)	Cardwell: equitable considerations and delay undermine relief	Whataburger: denial was clear abuse; arbitration must be enforced; mandamus appropriate given lost appeal	Conditional writ granted; trial court directed to promptly order arbitration

Key Cases Cited

J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) (ambiguity/illusoriness analysis for arbitration agreements)
In re Halliburton Co., 80 S.W.3d 566 (Tex. 2002) (upholding mandatory arbitration notice language similar to acceptance-by-continuing-employment)
In re 24R, Inc., 324 S.W.3d 564 (Tex. 2010) (arbitration agreement enforceability; manual language not necessarily incorporated)
In re Reece, 341 S.W.3d 360 (Tex. 2011) (mandamus appropriate to review denial of arbitration where appeal would be inadequate)
In re Odyssey Healthcare, Inc., 310 S.W.3d 419 (Tex. 2010) (trial-court-abuse standard when refusing to compel arbitration)
In re Allstate Indem. Co., 622 S.W.3d 870 (Tex. 2021) (mandamus adequacy and standards)
Rachal v. Reitz, 403 S.W.3d 840 (Tex. 2013) (policy favoring arbitration)
Light v. Centel Cellular Co., 883 S.W.2d 642 (Tex. 1994) (at-will employment and contract formation principles)