*1 DAVIDSON, INC., Appellant, J.M. WEBSTER, Appellee.
Chelsey J.
No. 13-00-626-CV. Texas, Appeals
Court
Corpus Christi.
May 2001. July
Rehearing Overruled *2 alternative, appellant, In the
аrbitration. (“Davidson”), this Davidson, asks Inc. J.M. mandamus order- a writ of to issue Court *3 grant the trial court to ing the the trial affirm We compel arbitration. order, request deny appellant’s court’s of mandamus. for writ A. BACKGROUND HISTORY AND PROCEDURAL compel, the motion hearing At the from only argument heard the trial court party pre- counsel. Neither parties’ affidavits, discovery, No sented evidence. into evidence. were offered stipulations or are following pleadings,1 Based on December undisputed facts. On Chelsey appellee, hired Davidson Webster, On December as a mechanic. appellee sign that required Davidson Poli- Dispute Resolution an “Alternative states, part, as fol- relevant cy,” which lows: Davidson, Inc.
J.M. ALTERNATIVE DISPUTE Makowski, Royston, Rayzor, J. Chester RESOLUTION Antonio, Druce, Vickery, Novak & San POLICY Morris, Royston, Rayzor, Vickery Myra K. APPLICATION EMPLOYMENT Christi, Williams, Ruth A. L.l.p., Corpus LANGUAGE Silvers, Wesely, Royston, Rayzor, Nathan Williams, Houston, Appel- Vickery & for I, is af- signature whose applicant lant. hereto, Com- and the above listed fixed (hereinafter to as the referred pany, Christi, Nielsen, Corpus Richard Daniel all of its offi- “Company”), for itself and Appellee. for directors, cers, employees, agents YÁÑEZ, mutually agree and contract HINOJOSA, all of which Before Justices claims, disputes or con- any and all and CASTILLO. troversies, based on the Con- whether Code(s), [sic], Statutes, Ordi- struction OPINION Orders, nances, Rules, Regulаtions, Opinion by Justice HINOJOSA. of he United [sic] common law and/or subdivisions, of ei- all interlocutory appeal from the States This is and/or ther, basis asserted on the trial court’s denial of a and/or Anglin Tipps, Inc. v. B. may summarily whether to decide 1. A court affidavits, compel arbitration on the basis discovery, stipulations. Jack pleadings, contract, quasi-contract, personal injury, tort, offenses, quasi-offenses or other- ACCEPTED AND AGREED TO:
wise, of, arising any or out or in way APPLICANT: C.J. Webster PRINTED [signed] NAME: relating application to this employ- for DATE; 12-15-97 S.S. security # [social ment, application or other for em- number] ployment I may previously have Appellee sustained an on-the-job injury submitted, future, or may submit in thе 3, 1998, on November and filed for work- Company’s or the decision to hire or not compensation ers’ benefits. He subse- me; to hire including arbitrability However, quently returned to work. ap- claim, dispute, controversy shall *4 pellee’s condition deteriorated and his exclusively finally by be and settled treating physician placed him on “no work” by, arbitration administered thereafter, appellee’s status. Soon em- Conducted [sic] under the Arbitration ployment with Davidson ceased. of, Arbitrator(s) Rules and before the an Arbitration Tribunal of the National Davidson, Appellee sued alleging he had Resolution, Inc., Dispute Association for been filing terminated retaliation for a pursuant provisions to the of the Feder- compensation workers’ claim.2 Davidson al Arbitration Act any applicable and/or compel filed a motion to arbitration. Act, Dispute Alternative Resolutions Davidson pol- asserted the arbitration effect, whichever shall have the broadest icy appellee signed had was a binding arbi- all claims of any rights contrary, to the tration agreement appellee’s and that including any right by trail jury, to [sic] scope agree- claims fell within the of the being hereby expressly waived. ment. trial The court denied the motion stating
without a reason. Davidson then interlocutory appeal filed this and manda- If еmployed, agree I to abide and compel mus action. Davidson seeks rules, comply policies with all of the and arbitration under the Texas Arbitration procedures of the “Company.” under- Act3 and the Federal Arbitration Act.4 stand that if I employed by am
“Company,” employment such will be B. Jurisdiction “Company” may “at-will” and that Act, my employment terminate Under Texas Arbitration at time interlocutory appeal may an be taken for reason. from compel a trial court’s of a denial arbitration. See Tex.Civ.PRAc. & Rem.Code 171.098(a)(1) (Vernon § Supp.2001). supervisor person No or other than the Ann. appropriate remedy Mandamus is the “Company” change President of the can improperly when the trial court denies a modify any employment otherwise compel pursuant motion “Company” reserves Act. L L re & unilaterally abolish or modi- the Federal Arbitration Assocs., L.P., prior Kempwood fy any personnel policy without (Tex.1999) curiam); EZ Pawn (per notice. (Vernon § § 2. See 451.001 171.001 Tex.Lab.Code TexCiv.Prac. & Rem.Code Ann. Ann. (Vernon 1996) (an Supp.2001) employer may discharge an employee because the has filed a faith). (2000). compensation good § 2 workers’ claim in 4. 9 U.S.C.
5H
evidentiary
Mancias,
must conduct an
the trial court
Corp. v.
934 S.W.2d
facts in
will
to cor
determine the material
hearing
Mandamus
issue
or the
party
rect a clear abuse of discretion
Id. Once a
establishes
dispute.
duty imposed by
law when
violation of
the arbitration
scope
within the
claim
adequate
by law.
remedy
there is no other
must
the trial court
agreement,
Packer,
Walker v.
stay
proceedings
its own
(Tex.1992).
a party
When
seeks
party opposing arbitration
unless
Texas Arbitra
arbitration under
evidence
presenting
its burden of
meets
Act,
tion
the Federal Arbitration
Act and
Oakwood, 987
prevents
enforcement.
parallel
an
pursue
proceedings:
he must
573;
Inc.
Cantella
denying
interlocutory appeal
the order
(Tex.1996)
Goodwin, act,
under the
Texas
curiam).
(per
request
a writ of
from
for
mandamus
court’s deter
We review a trial
Ang
the federal
B.
denial under
act. Jack
concerning
mination
the existence
.,
Tipps,
lin
Inc. v.
Co.
an abuse
agreement under
(Tex.1992);
Stewart
Co.
Title Guar.
*5
Roosth,
standard.
27 S.W.3d at
discretion
330,
Mack,
(Tex.App.
945 S.W.2d
331
Servs.,
3;
207;
at
Ins.
27 S.W.3d
ANCO
1997,
w.o.j.,
pet.
Dist.]
—Houston
dism’d
[1st
Strictly
v.
Group,
Hardin Const.
Inc.
denied).
mand.
(Tex.
Inc.,
308,
Painting,
945
312
S.W.2d
1997,
orig. proceeding
Antonio
App. — San
STANDARD OF REVIEW
C.
denied]).
standard,
Under this
we
[mand.
party seeking
A
arbi
un
uphold the trial court’s decision
must
of an
tration must establish the existence
trial court could
less we conclude that the
that the
and show
decision.
reasonably
have reached
one
scope
fall within
of that
claims raised
Hardin,
Roosth,
207;
945
27 S.W.3d at
In
re
Mobile
Oakwood
here,
Where,
as
trial
S.W.2d at 312.
(Tex.
Homes, Inc.,
571,
987
573
S.W.2d
facts
findings
not enter
of
and
court does
1999)
curiam);
(per
H.E. Butt
re
Gro
law,
the trial
we must affirm
conclusions
(Tex
Co.,
cery
360,
17 S.W.3d
366-67
if
evi
decision
there is sufficient
court’s
2000,
.App.
orig. pro
[14th Dist.]
— Houston
support
any legal theory
it upon
dence to
one
ceeding).
party
When
denies he
v.
Pepe
Dev. Co. Gar
asserted.
Internat'l
agreement,
bound
an arbitration
925,
cia,
(Tex.App
915 S.W.2d
929
summarily
trial court must
determine
. —Hous
1996, writ).
if
Even we
Dist.]
ton
no
[1st
whether an
exists
to arbitrate
differently,
have decided the issue
would
parties.
between the
Rem.
Tex.Civ.Prac.
finding
trial court’s
we cannot disturb the
(Vernon Supp.2001);
§ 171 .021
Code Ann.
arbitrary
it is shown to be
and
unless
Assocs., L.L.P.
Pathology
Southwest Tеx.
Walker,
at 840.
unreasonable.
827 S.W.2d
Roosth,
204,
(Tex.App.—
v.
27 S.W.3d
conclusions, however, are reviewed
Legal
2000,
filed);
pet.
ANCO Ins.
San Antonio
Id.; Pony Express Courier
Houston,
Romero,
de novo.
Servs.
Inc. v.
(Tex.
Morris,
817,
v.
2000, Corp.
S.W.2d
1,
(Tex.App.
Antonio
— San
writ).
1996,
Antonio
Wheth
denied).
App.
no
summarily
A
de
pet.
may
court
— San
duty
on the
imposes
an
er
on the
cide whether
dispute
a matter of
affidavits,
to arbitrate a
discovery, parties
pleadings,
basis of
interpretation
question
and
Anglin,
at
contract
stipulations.
and
842 S.W.2d
the court. Tenet Healthcare Ltd.
However,
necessary
if
law for
material facts
controverted,
(Tex.App.—
Cooper,
the issue
v.
960 S.W.2d
are
determine
388; Belmont,
Houston [14th
writ
Dist.]
dism’d at
D.
Is TheRe a
ÁRBitration
Healthcare,
388; Kline,
960 S.W.2d at
Agreement?
782. The existence of a valid
Arbitration is a contractual
is determined by the substan
proceeding by
parties,
which the
in order
tive contract
law of Texas. See Tenet
to obtain a speedy
inexpensive
final Healthcare,
set as a of con- employee and that condition em- regarding No written sub- employment, agreed she tinued ap- will be honored unless ployment concerning her em- complaints mit by in proved writing Executive director to arbitration. ployment I makes and above.... understand AMI Id. for available arbitration resolution I a
grievance. also understand that as Texas appeals The court of also cited the employment holding Light condition and continued v. Centel Supreme Court’s employment, com- agree submit Cellular Healthcare, рrocess and
plaints published to the Tenet held Light, supreme final In court agree accept to abide be ulti- for a valid contract panel decision of the arbitration as that consideration employ employer and an at-will my for tween complaint(s) mate resolution of employ cannot on continued depend all ee any and events that arise out of promise illusory. a ment because such employment employ- or termination of supreme court stated: ment. promise, by a either Consideration for signed Cooper acknowledgment
Id.
in an at-
employer
discharged,
form.
Id. She was later
employment,
dependent
cannot be
will
wrongful
sued Tenet Healthcare for
dis-
period
employment.
continued
on a
Id.
charge.
The trial court denied
be-
promise
illusory
Such
would be
arbitration,
employer’s
who
promisor
cause it
to bind
fails
stating
affirming
without
Id.
reason.
always
option
retains the
of discontinu-
decision,
trial court’s
First Court
employment
performance.
in lieu of
ing
held
Appeals
there was
enforceable
sup-
illusory promises are all that
When
because,
contract between the
contract,
port
purported bilateral
language
while the
of the
handbook
there is no contract.
acknowledgment purported
bind the
(citation
it
employee,
explicitly did
The to the handbook has been that The Tenet Healthcare court noted explicitly above. It that quoted states at-will, employment the under doctrine the handbook to con- was intended the company Cooper have the “could fired legal can stitute contract “because that acknowledg- the very signed minute she only occur with ex- a written Healthcare, Tenet ment form.” by a facility ecuted Executive director appeals at 389 n. 5. The court of an AMI Senior Executive Officer.” was unen- held the arbitration clause then that no written The evidence shows such (1) the for two reasons: because forceable agreement was ever so executed. employee, was at-will there (all parties between acknowledgment form has also was no contract the parties was quoted language above and the that existed between been promise employment); of at-will explicitly illusory about the nothing states (2) in the binding employer, language is disclaimer document acknowledgment employer right reserved the to handbook and on and the employer that the any provisions expressly or of the form denied amend rescind in the out appropriate” policies it deemed was bound set handbook “as with agree It Id. at its sole was further handbook. 388-89. We within discretion. (“The reasoning appeals of the court of in at 758 language of the arbitration Tenet Healthcare. binding upon indicates it Lumber, parties.”); both Alamo case, In the instant the “Alterna (“Since at 579-80 surrendered Dispute tive Resolution Policy-Employ their rights by jury, to trial these mutual Application ment Language” shows that promises consideration.”). supply valid appellee’s at-will; employment was Because we have held this case that the only president Davidson’s could modify an Dispute “Alternative Policy- Resolution employment agreement; and that David Employment Application Language” son right unilaterally “reserve[d] the sought tо bind the employee, not the modify any personnel abolish or policy company, we conclude these cases are not without prior Furthermore, notice.” just controlling. Healthcare, like Cooper in Tenet appellee compelled was sign after We hold that Davidson failed to meet its employment already his had begun. proof burden of that a agreement exists. Accordingly, the trial We conclude that the alternative resolu- court did not err in denying Davidson’s dispute tion policy in this case is not bind- Appellant’s arbitration. ing on parties. Although Davidson sole issue is overruled. agreed claims, “any submit and all dis- putes or arising controversies” it between The trial denying court’s order David- appellee arbitration, it explicitly son’s motion for arbitration is af- retained the absolute modify petition firmed. Davidson’s for a writ of policy terminate the time. mandamus is denied.
Further, we conclude that Davidson
gave
Dissenting Opinion by
no consideration for
purported
Justice
agreement. Appellee
CASTILLO.
was al-
ready working for Davidson when he
CASTILLO, Justice, dissenting.
signed the
alternative resolution
I concur with
majority’s
decision to
policy, and
implied
benefit of continued
deny
petition
Davidson’s
for
of man-
writ
employment
illusory
for an at-will em-
However,
regard
damus.
with
ma-
ployee.
jority’s decision to affirm the trial court’s
brief,
reply
its
Davidson cites In re
denying
order
Davidson’s motion to com-
Jebbia, 26 S.W.3d
(Tex.App.
arbitration,
pel
I
respectfully dissent.
2000, orig. proceeding),
[14th Dist.]
and In
would hold that a
agree-
valid arbitration
(Tex.
re Alamo Lumber
giving up the to litigate are sufficient support consideration to petition Both the for writ of mandamus However, agreement.” in interlocutory appeal both these and the address the cases, language the propriety of the arbitration of the trial court’s denial of an agreement showed that it employer’s stay was will the trial Jebbia, upon parties. both 26 proceedings See S.W.3d court arbitration.1 notes, (“FAA”), (2000), majority 1. As the § since the arbitration tration Act 9 U.S.C. 2 ("TGAA”), addresses both the Federal Arbi- the Texas General Act Arbitration comm affecting interstate jurisdiction a transaction subject matter To determine Godt, In Pamela re See disposition of erce.3 proper thus the over and 732, (Tex.App -Corpus us, we first determine S.W.3d matter before must . (federal 2000, orig. act proceeding) applies.2 the FAA or Christi whether the TGAA not applied if the contract does will not be undisputed It that Davidson seeks is commercе). to relate interstate both and that arbitration under acts un- us is scant. The both. The record before addressed that Webster resides designate disputed in the facts show arbitra "Where Pass, former and his in Texas which statute Aransas tion Davidson, Inc., corpora- a control, employer J.M. they to have the court should wish in the state D. Co. do business apply their choice. Wilson Constr. tion authorized 388, Texas, in Pass as is located Aransas Equipment v. Cris of 988 S.W.2d 1999, heavy-equipment a (Tex.App -Corpus orig. well. Webster was Christi . Here, injured. These facts to mechanic and was proceeding). parties agreed a conclusively establish apply act “shall have broad are insufficient whichever subject involving commerce.”4 purposes est of our “transaction effect.” For however, Therefore, presented jurisdiction based the record jurisdiction, matter on Court, majority in this concur parties’ agree cannot be conferred Gantt, deny mandamus relief under ment. Russ Berrie & Co. v. 998 decision to 1999, 713, jurisdiction therefore (Tex.App S.W.2d Paso the FAA.5 Our . —El of the TGAA. pet.). Accordingly, premised provisions no. Ann. record before us are first examined under & Rem.Code Tex.Civ.PRAc. (Vernon 171.098(a)(1) Supp.2001). § act if of the federal to see there is evidence 171.098(a) L § extent. In re L & Clause to fullest Rem.Code Ann. Tex.Civ.Prac. Assoc., L.P., (Vernon ) Supp.2001 urged Kempwood аnd the two were S.W.3d ( below, seeking party Tex. pursue parallel pro under both statutes must Mancias, ceedings. Corp. EZ Pawn v. alleges party 4. A who interstate commerce 1996); Anglin Jack B. Co. may variety ways: a it in of location of show (Tex. 1992). Tipps, v. state; transportation headquarters in another lines; of materials across state manufacture state; billings prepared response hostility parts 2. The FAA was a of in a different state; phone arbi- mail and calls American courts to enforcement of out interstate Stores, Profanchik, support agreements. City of a In re tration Circuit Inc. in contract. Adams, (Tex.App. Corpus Christi 532 U.S. 121 S.Ct. — (2001). orig. proceeding). 149 L.Ed.2d casе, light I would applies of the record this 3. The federal act to all suits in state deny also mandamus relief because Davidson and federal court when the concerns remedy by interlocutory ap evidencing adequate involv has an "contract transaction peal. Anglin, 272. To be ing application its 842 S.W.2d at commerce” and mandamus, a solely shipment remedy relator entitled to limited interstate two-prong requirements goods. Anglin, at 269. The cre must meet Packer, 827 839- employment relationship which test. ation of an Walker (1) *9 (Tex.1992). show that The relator must involves commerce is sufficient. White-Weld discretion, 485, Mosser, (Tex clearly abused its the trial court v. 587 S.W.2d Co. 1979, n.r.e.). (2) by adequate remedy relator has no .Civ.App. writ ref’d and the - Dallas power grant appeal. This has no "involving is in Id. Court The term commerce” thus conditions. terpreted equiv relief absent these broadly and is the functional mandamus 916, commerce,” Ct.App., 700 S.W.2d "affecting signaling the Johnson v. Fourth of alent (Tex. 1985) (orig.proceeding). Congress to exercise its Commerce intent of nied). Since no evidence other than the “Alter The burden then shifts to the op Dispute native Policy” ques Resolution posing party ground to establish some for tion was introduced at the the hearing on of the revocation the arbitration agree arbitration, compel no there are Hоmes, ment. In re Oakwood Mobile questions factual in dispute. The is (Tex.1999) Inc., 571, 987 S.W.2d (per us, then, sue before is the trial court’s curiam). question Since whether a legal interpretation pro of the arbitration agreement valid gov arbitration exists is vision. Accordingly, ap de novo review is law, erned substantive contract a re propriate. Bryan, Nationwide Inc. v. viewing court must determine whether Dyer, 518, (Tex.App.— 969 S.W.2d parties willingly into a entered mutu pet.). Austin ally binding contract for arbitration for given. which consideration was See Kline THE AGREEMENT TO ARBITRATE O’Quinn, (Tex. v. 874 S.W.2d A party seeking writ de [14th Dist.] must an “application” make for court a nied). order. Tex.Civ.Prac. & Rem.Code Ann. 171.021(a), 171.024(b) (Vernon §§ Supp. DISCUSSION party requests Once and agree demonstrates that written copy Davidson filed a verified of a writ- ment to arbitrate exists and the claims agreement ten arbitration which Webster presented scope fall within the signed. Central to this is that dissent agreement, the trial court shall an enter provides us par- document before that the order requiring arbitration of those claims. “mutually agree ties and that any contract (Ver § 171.021 Tex.Civ.Prac. & Rem.Code claims, all disputes and or controversies non Supp.2001); Capital Props, Income v. claim, ... including arbitrability (Tex. Blackmon, 23-24 dispute or controversy shall be exclusively 1992). The initial of establishing burden finally by binding settled that a agreement valid arbitration exists is ... That parties agreed ”. to arbitrate party EZ seeking arbitration. claim, arbitrability dispute Mancias, Corp. Pawn v. 934 S.W.2d 91 controversy presents the compelling most (Tex.1996). Once the existence of an arbi reason to enforce the established, agreement tration has been dispute The current entails Davidson’s presumption favoring attaches arbitration. Goodwin, contention that the arbitration Co. Cantella & 924 S.W.2d is valid and Webster’s contention that it (Tex.1996); is Prudential Sec. Inc. Marshall, party disputed not.6 Neither existence 1995) arbitrate, of the (orig.proceeding); Dallas neither Cardiology Assoc., Mallick, P.A. v. party challenged agree- consent 212 (Tex.App. dе- pet. ment.7 Davidson has made an initial — Texarkana commerce,” 6. appeared The record is as considered it volves "interstate the con- ruling public policy. before the trial court time at the of its tract violates on the motion to In re arbitration. Profanchik, signed separate Before 7. As Webster court, urged trial Webster that arbitration his consent and does contest agreement, question should not be ordered do not because arbitration we reach employment implied affirmative defense unavailable under of whether his continued Code, Mills, Inc., illusory, Hathaway Texas Labor the contract under consent v. Gen. Jebbia, (Tеx.1986). neither the nor the in- re Cf.
517 1016, Ferguson, Ferguson arbi- v. S.W.2d parties agreed that to showing writ). parties’ agreement 1937, to submit trate. The no (Tex.App. — Eastland claim, or arbitrability dispute of of a element is fundamental Consideration supports to a find- controversy arbitration contract; it can consist of a every valid is within the ing dispute that the current or a or detri promisor to the loss benefit scope agreement. of the arbitration Renz, v. promisee. to the Smith ment illuso- Concluding agreement that the is 702, (Tex.App. Corpus S.W.2d — however, ry, majority holds that denied). 1992, Where there is writ Christi proof did not meet its burden of Davidson agreement, the benefit of binding agree- to show that a to avоid ex bargain right is therefor ment exists absent consideration by arbitrat delay litigation of pense and was and further holds 753, Jebbia, In re ing. parties. majority’s The both 2000, (Tex.App. [14th Dist.] — Houston conclusions are addressed seriatim. proceeding). orig. Consideration a reciting A written instrument consid agree- that the majority The concludes Gentry, imports one. Warren eration illusory is ment to arbitrate because 151, 1025, 1025-26 Tex.Civ.App. 50 S.W. provided no The Davidson consideration. writ). 1899, To (Tex.Civ.App. offset agreement expressly provides that consideration, it of legal presumption this parties “mutually agree and contract” to present upon Webster to was incumbent The disputes submit their to arbitration. question on the legally admissible evidence par- expressly also waives the He not. Ac lack of consideration. did of respective by ties’ to Both right jury. trial cordingly, before us the record discloses claim, parties agreed to submit he a employer agreed his and to controversy, arbitrability including the the courtroom to address forum outside thereof, to arbitration and in return each claims, disputes, and their controversies. Both relinquished jury. trial parties stood to By agreement, their both were, therefore, to agreed obligated and cost and time to by the reduced benefit arbitrability submit not their of objective disputes, which is the detеrmine arbitrability but also the of they agreed At time to of arbitration. claim binding Webster’s retaliation arbi- arbitrate, parties gave up something tration. the case value them-the take agree The essence of arbitration agree directly jury This mutual to a trial. third controversy ment to submit a provides sufficient consideration ment Coll., Baptist party. See Manes Dallas In re support (Tex.App. — Dallas 756; Jebbia, In re Alamo 26 S.W.3d at n.r.e.). purpose writ ref'd Co., 23 formalities, Lumber avoid de 2000, orig. proceeding). ordinary Antonio lay expense litigation. — San employment contained in (Tex.App. [14th Lumber, (arbitration handbook); re Alamo orig. proceeding) Dist.] (Tex.App. аccepted Antonio it was as a condi stated — San signed orig. proceeding) (employee employment); Ltd. v. tion of Tenet Healthcare “Employee Acknowledgment” that arbitration (Tex.App.— Cooper, 960 S.W.2d required em w.o.j.) as condition continued writ dism'd was [14th Dist.] Houston ployment). (agreement to arbitrate was made condition *11 right modify Davidson’s to or terminate right tained the to of
personnel policies
claim,
any
controversy.
or
Noth-
in
ing
the document
us
before
limits the
majority
The
concludes that arbitration
ability
employer
of either the
or the em-
binding
is not
parties
on both
because
ployee to
employment
terminate
at will.
Davidson
right
rеtained the absolute
to
modify or
agreement
any
terminate the
at
majority
The
that
opinions
concludes
the
time. The agreement to arbitrate is con-
in In
and In
re Jebbia
re Alamo Lumber
tained in the same document that also Co.,
relies,
upon which Davidson
are
paragraph addressing
contains a
employ-
controlling.
majority
The
acknowledges
ment application policies. This second that
in both cases the language of the
paragraph contains the statement that the
was held to bind
company
the
to
right
unilaterally
“reserves
promises
both
and that mutual
to
modify any personnel
abolish or
policy
supplied
arbitratе
valid consideration. Re
notice,”
without prior
upon which the ma-
lying upon Tenet
Ltd.
Healthcare
v. Coo
jority bases
holding.
para-
its
The second
per,
(Tex.App.
An agreement to in employee arbitrate contained a neither the handbook nor the written from separable acknowledgement contract the en form language contained tire contract and is valid аnd binding employer. enforceable the The language spite in any upon of attack made the merely con established the existence of a con tract Pepe as a whole. Int’l Dev. v. Co. ditional to arbitrate. See (Tex. Hutton, Tucker, Pub. Brewing, 915 Shearson Lehman Inc. v. writ). [1st Dist.] 920 (Tex.App. Corpus - Houston - That employer right the has to w.o.j.). the unilat Christi writ dism’d The erally modify personnel poli terminate or Court Appeals, Fourteenth which decid Tenet, negate employee’s cies does not ed right has also now held that mutual claim, “any promises give up right litigate arbitration of dis pute controversy” conjunction or in can supporting with constitute consideration Id.; Gonzalez, Jebbia, employment. his v. Henry to arbitrate. 690 (Tex.App.—San ton S.W.3d at has court also held An dism’d). that, io pet. In the event language where employer employ it is right, exercised indicates that on parties, ee retained the to force argument no con times, At all on issue. Webster re- tract was formed is merit. Id. without state, and, employment Light 8. Texas is an at will v. Cel contract arbitrate. Centel case, Tex., subject exceptions not relevant this lular Co. 1994) ("...at employment employment pre is terminable at time ei will does not cause, party, ther or with without absent an clude the formation of other contracts be express agreement contrary. employer employee. to the tween At Fed. Ex will Dutschmann, press Corp. employees may employers contract with their (Tex. 1993); except which would Schroeder Texas Iron matter those limit Works, (Tex.1991). ability employer either Inc. 813 S.W.2d employment (Empha employ The fact that Webster was an at will terminate at will.” ee, however, legitimacy original.)) does not affect the sis in *12 it is an affirmative de case, the enforced because present In the the Texas Labor unavailable under fense parties “mutual- agreement reads the adduced he maintained. Webster Code as ly agree and contract” to arbitrate.9 An precedеnt nor to neither evidence relevant objective review of the record before us agreement is show that the unconscionable in this shows that the case were as claimed. Tex.Civ.Prac. &Rem.Code Ann. obligated they at time execut- mutually the (Vernon Emerald Supp.2001); § 171.022 agreement. ed Davidson (Tex. Peel, 920 Tex. v. S.W.2d promised litigation to in favor of relinquish (an 1991, writ.) no arbitra promised the arbitration and Webster if is invalid unconsciona tion promises provided These mutual same. ble); v. Ai Employers’ American Ins. Co. necessary to fulfill the consideration ken, (Tex.App S.W.2d . —Fort mutuality obligation requirement, and a (there writ) nothing Worth no valid to was formed arbitrate per se about an arbitration unconscionable parties. between party claiming and the unconscio- contract it). prove nability has the burden Web arguments Webster’s argument that the contract is illuso ster’s a valid Because Davidson established ar- ry lacks has been addressed. mutuality agreement, bitration Webster had the bur- argument regarding His the absence den show that the claim fell outside only the addressed interstate commerce Inc., agreement. Prudential Sec. FAA. did not applicability of the Webster Co., 900; D. S.W.2d at Wilson Constr. bel applicability address the the TGAA at Although deny S.W.2d 394. he did not Finally, contention that ow.10 Webster’s the agreement existence of to arbi- public unavаil policy arbitration violates trate, Webster refused to arbitrate and ing. public policy “The of both our state thereby jurisdic- the trial invoked court’s agree governments and federal favors compel. tion to hear the motion Tex. disputes legal through ments resolve Ann. CivPRAc. & Rem.Code procedures.” voluntary such settlement 171.021(a)(Vernon § Supp.2001). None of 268; & Anglin, 842 see Cantella arguments his trial court addressed Co., at 944. or met his burden to show that the claim agreement. fell outside the None mandat- CONCLUSION ed agreement. revocation of I established a would hold Davidson Nothing in the in this case estab- under record arbitration agreement valid that the was has over- lishes TGAA and that Webster neither defense, ar- pled presumption favoring an affirmative and Web- strong as come the nor authority holding that the TGAA established presented ster no bitration under grounds for revocation of the the arbitration should be claim, controversy under the Mutuality obligation requisite in 9. is a statute, of a contract. Tex. Gas Util. Co. v. formation or the state "whichever shall FAA Barrett, agree- have the broadest effect." Under parties must mutual as case, communicate their then, question of the ment in this Villarreal, to each other. Garcia sent properly applicable one for statute was (Tex.Civ.App. Corpus Sons, Wiley — generally John arbitrator. See 1971, writ). Christi Livingston, 84 S.Ct. 376 U.S. Inc. 898(1964). 909, 11 L.Ed.2d agreement, Webster and the arbitration 10. agreed arbitrability Davidson arbitrate Inc., 900; Prudential Sec. 909 S.W.2d at
D. Wilson Constr. S.W.2d at
Accordingly, would find that the trial
court denying erred Davidson’s motion *13 arbitration and to stay proceed
ings. petition deny would for writ of
mandamus and reverse the trial court’s
order with that the trial court instructions
(1) order arbitration Webster’s claims (2) Davidson,
against stay Webster’s pending
civil action in accor
dance their with
HARLINGEN IRRIGATION DISTRICT
CAMERON COUNTY NO.
Appellant,
CAPROCK COMMUNICATIONS
CORP., Appellee.
No. 13-99-396-CV. Texas, Appeals
Court
Corpus Christi. 31, 2001.
May
Rehearing July Overruled