ACCEPTED

04-15-00307-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 6/23/2015 4:35:06 PM KEITH HOTTLE CLERK

NO. 04-15-00307-CV

IN THE COURT OF APPEALS FILED IN 4th COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICTSAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 06/23/2015 4:35:06 PM KEITH E. HOTTLE *** Clerk

AUTOZONE, INC., AND AUTOZONERS, L.L.C., Appellants

V. MARIO FLORES, Appellee

***

BRIEF OF APPELLANTS

*** BRETT REYNOLDS & ASSOCIATES, P.C. THE LAW OFFICE OF Brett T. Reynolds JACQUELINE M. STROH, P.C. State Bar No. 16795500 Jacqueline M. Stroh [email protected] State Bar No. 00791747 P. Brook Swilley [email protected] State Bar No. 24041997 10101 Reunion Place, Suite 600 [email protected] San Antonio, Texas 78216 1250 N.E. Loop 410, Suite 420 (210) 477-7416 San Antonio, Texas 78209 (210) 477-7466 (telecopier) (210) 805-9799 (210) 805-9654 (telecopier)

ATTORNEYS FOR APPELLANTS

APPELLANTS RESPECTFULLY REQUEST ORAL ARGUMENT

IDENTITY OF PARTIES AND COUNSEL

In accordance with Texas Rule of Appellate Procedure 38.1(a), Appellants present the following list of all parties to the order being appealed and their counsel:

1. Appellants/Defendants Below

AutoZone, Inc.

AutoZoners, L.L.C.

2. Counsel for Appellants

Brett T. Reynolds Trial/Appellate Counsel P. Brook Swilley 1250 N.E. Loop 410, Suite 420 San Antonio, Texas 78209 Jacqueline M. Stroh Appellate Counsel The Law Office of Jacqueline M. Stroh, P.C.

10101 Reunion Place, Suite 600 San Antonio, Texas 78216

3. Appellee/Plaintiff Below

Mario Flores

4. Counsel for Appellee

Jaime M. Lynn Trial/Appellate Counsel Kiara Martinez The Carlson Law Firm, P.C.

11606 North Interstate Highway 35 Austin, Texas 78753 -and- 400 West Jasper Road Killeen, Texas 76542 ii

TABLE OF CONTENTS

Page IDENTITY OF PARTIES AND COUNSEL ........................................................... ii TABLE OF CONTENTS ......................................................................................... iii INDEX OF AUTHORITIES................................................................................... vii STATEMENT OF THE CASE ................................................................................ xv STATEMENT REGARDING JURISDICTION ....................................................xvi STATEMENT REGARDING ORAL ARGUMENT .......................................... xvii ISSUE PRESENTED ........................................................................................... xviii

Issue No. 1:

Whether the AutoZone Appellants are entitled to have the arbitration provisions contained in the parties’ agreement enforced pursuant to the Federal Arbitration Act, resulting in a referral of this matter to arbitration.

The arbitration agreement expressly invokes application of the Federal Arbitration Act, as well as AutoZone’s involvement in interstate commerce. That agreement is broad in scope – applying to claims for personal injury – and reserves to the arbitrator all questions regarding the interpretation, enforcement, and scope of the agreement. Regardless, Appellee Flores’ claims fall well within the agreement’s scope; and Flores’ only defenses – based on section 1’s exemption, the Texas Labor Code, and procedural unconscionability – have been rejected by Texas and federal courts alike ................................................ xviii STATEMENT OF FACTS ........................................................................................ 1 SUMMARY OF THE ARGUMENT ........................................................................ 3 ARGUMENT AND AUTHORITIES ........................................................................ 6 iii I. This Court Reviews the Trial Court’s Ruling De Novo ........................ 6

II. The AutoZone Appellants Established the Existence of a Valid Arbitration Agreement Enforceable under the Federal Arbitration Act ...................................................................................... 8

A. The Parties Entered into a Binding Arbitration

Agreement to which the Federal Arbitration Act Applies .......... 9 (CR 80-83) Flores not only signed the agreement’s acknowledgement form in 2005, but he later acknowledged that he had read and understood the plan documents again in 2011 and 2012 – this time through a computer system that provided a Spanish translation of all relevant documents by merely making a Spanish-language selection. (CR 174-75, 180, 182, 187-91)

On March 27, 2013, Appellee Flores allegedly sustained an on-the-job injury while working as manager of an AutoZone store in Rio Grande City, Texas. (CR 11) Specifically, Appellee Flores alleged that he fell from a ladder while attempting to ascend it with boxed merchandise. (CR 11) Though Appellee Flores applied for and received benefits under the plan, he nevertheless filed suit against AutoZone, Inc. and AutoZoners, L.L.C. on January 14, 2015, alleging negligence and seeking monetary relief. (CR 9-16, 26) The Defendants answered and, shortly thereafter, filed a Motion to Compel Arbitration, seeking enforcement of the arbitration provisions contained within the subject plan. (CR 28-31, 72-143)

Appellee Flores opposed the motion to compel, arguing: (1) that the arbitration agreement’s location within an “employment” agreement triggered an exception to the Federal Arbitration Act’s application; (2) section 406.033(e) of the Texas Labor Code precludes enforcement of the agreement; and (3) the agreement is procedurally unconscionable because Flores could not read or write English when he was asked to acknowledge it. (CR 145-60) The AutoZone Appellants replied, and the trial court held a hearing on April 13, 2015. (CR 144, 161-202; RR) Thereafter, Flores attempted to submit additional evidence in support of his unconscionability defense, to which AutoZone objected. (CR 203-87, 288-93) On April 27, 2015, the trial court signed an Order denying “Defendants’ Motion to Compel/Enforce Arbitration.” (CR 294) The AutoZone Appellants then timely perfected an interlocutory appeal to this Court pursuant to section 51.016 of the Texas Civil Practice and Remedies Code. (CR 299-300, 307-09)

SUMMARY OF THE ARGUMENT

Both Texas and federal courts have long acknowledged arbitration as a preferred alternative to litigation in a judicial forum, generally and in the specific context of occupational benefit plans. Those same courts have long enforced arbitration provisions under the Federal Arbitration Act when the contract expressly invokes the federal act and also when the contract involves interstate commerce. Not only does the arbitration agreement here expressly invoke the FAA in the plan’s provisions, but it expressly invokes AutoZone’s involvement with interstate commerce. Certainly, the invocation of the FAA is enough to trigger its application. But, should there be any doubt, AutoZone’s own involvement in interstate commerce – through its interstate purchase and sale of goods as expressed in the agreement, its incorporation in a different state, and the administration of medical benefits by an entity located in that same foreign state – sufficiently tethers the agreement to interstate commerce for application of the FAA. Thus, the Federal Arbitration Act and its strong presumption in favor of arbitration govern the agreement at issue in this appeal.

Entrenched legal principles require courts to construe arbitration provisions broadly and employ a presumption of arbitrability when analyzing whether a particular plaintiff’s claims fall within the scope of an agreement to arbitrate. Though the arbitration provisions refer all issues concerning the scope of the agreement to the arbitrator himself for determination, Appellee Flores’ personal injury claims fall squarely within the plan’s scope, which extends to and encompasses all claims for personal injury of whatever kind. Despite the strong public policy in favor of arbitration and the mountain of precedent requiring enforcement here, Appellee Flores nevertheless attempted a series of meritless roadblocks in an effort to thwart the motion to compel. But those efforts are futile. Texas courts have rejected every one of Flores’ defenses through binding precedent that requires this Court to do the same.

Flores first argued that the FAA does not apply to “contracts of employment” and that the occupational benefit plan was just such a contract. Not only is this a threshold question that the parties agreed to submit to the arbitrator for resolution, but the Supreme Court of the United States has explained (on more than one occasion) that the FAA expressly limits the phrase “contracts of employment” to contracts involving employees who are actually engaged in the shipment of goods – like seaman, railroad workers, and truck drivers. Flores works in a retail store – just as the employee did in the seminal Supreme Court case holding that such employment does not come within the only exception to the FAA’s application. Flores offered no evidence that he is actually engaged in the physical transport of goods across state lines because there is none.

Next, Flores argued that enforcing the arbitration agreement would violate the Texas Labor Code – even though the Supreme Court has addressed and rejected that exact argument. Though not clear, Flores appears to have conceded the point at the hearing on AutoZone’s motion to compel. Regardless, it, too, presents a threshold question of arbitrability and ultimately has no merit. Finally, Flores argued that the arbitration agreement is procedurally unconscionable because Flores, a Spanish speaker, could not read the agreement as presented to him in English. However, because his argument attacks the contract as a whole and because the arbitration agreement refers all matters relating to its interpretation and enforcement to binding arbitration, the Supreme Court of the United States has held that this question, too, is one for the arbitrator’s decision.

Even assuming a court could address the issue, Flores offered no evidence of any inability to understand English and again thumbs his nose at binding precedent regardless. This Court – based on precedent from the Supreme Court of Texas – has rejected precisely this contention because illiteracy is no defense to contract. Specifically, the Fourth Court considered and rejected as a defense to arbitration a claimed inability to read English. In doing so, the Court refused to follow case law that Flores cited to the trial court in support of his claim. And even under the case law Flores cited below, he could not prevail. Those cases precluded arbitration based on affirmative conduct attempting to hide the arbitration agreement from the claimant, whereas here the evidence is precisely the opposite. That evidence includes a notice in Spanish – which Flores acknowledges he received – providing contact information to be used in the event anyone had difficulty understanding any part of the agreement. And, in the years after the initial acknowledgement, Flores acknowledged the agreement at least twice more on a computer system that translated all documents into Spanish at the click of a button. In short, Flores offered no viable defense to enforcement of the mandatory referral to arbitration; and the trial court erred in denying AutoZone’s motion to compel. The Court should reverse and render a referral to arbitration.

ARGUMENT AND AUTHORITIES

I. This Court Reviews the Trial Court’s Ruling De Novo

Review of a trial court’s decision on whether to enforce an arbitration provision – though frequently couched in terms of abuse of discretion – is made de novo when the appeal concerns legal issues, such as the interpretation of the arbitration provision itself, matters of statutory construction, and the viability of defenses to arbitration. See, e.g., City of San Antonio v. International Ass’n of Fire Fighters, Local 624, Nos. 04-12-00783-CV and 04-13-00109-CV, 2013 WL 5508408, *3 (Tex. App. – San Antonio, Oct. ^[2], 2013, no pet., orig. proceeding) (mem. op.) (“The existence and the applicability of the arbitration agreement is a question of law and, thus, we review the decision de novo.”), quoting In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753-54 (Tex. 2001) (orig. proceeding)2 (if agreement includes claims and opposing party cannot prove any defense, “the trial court has no discretion but to compel arbitration and stay its own proceedings”); see also State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) (issues of statutory construction are questions of law that courts review de novo); Brand FX, LLC v. Rhine, 458 S.W.3d 195, 204 (Tex. App. – Fort Worth 2015, no pet.) (“Whether the party resisting arbitration has established a defense to arbitration – such as waiver or unconscionability – is a legal issue also subject to de novo review.”), citing In re Poly-Am., L.P., 262 S.W.3d 337, 348 (Tex. 2008) (orig. proceeding). Thus, the Court must review the trial court’s denial of the AutoZone Appellants’ motion to compel de novo.

2 Many of the judicial decisions cited in this brief arise out of original proceedings because, until the enactment of section 51.016 of the Texas Civil Practice and Remedies Code in 2009, parties did not have an interlocutory appellate remedy to challenge a trial court’s refusal to enforce arbitration provisions. See TEX. CIV. PRAC. & REM. CODE § 51.016 (West 2014); cf. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 642-43 (Tex. 2009) (orig. proceeding) (“A party denied the right to arbitrate pursuant to an agreement subject to the FAA does not have an adequate remedy by appeal and is entitled to mandamus relief to correct a clear abuse of discretion”).

II. The AutoZone Appellants Established the Existence of a Valid Arbitration Agreement Enforceable under the Federal Arbitration Act The Supreme Court of Texas has set forth the test that governs the determinations to be made in this interlocutory appeal:

A party seeking to compel arbitration must establish the existence of an arbitration agreement, and show that the claims raised fall within the scope of that agreement. See Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996). Once the party establishes a claim within the arbitration agreement, the trial court must compel arbitration and stay its own proceedings. Id.

In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999) (orig. proceeding);3 see also In re Rubiola, 334 S.W.3d 220, 223 (Tex. 2011) (orig. proceeding); FEDERAL ARBITRATION ACT, 9 U.S.C. §§ 3, 4 (mandating referral to arbitration and stay of trial court proceedings when suit based on issue referable to arbitration under a written arbitration agreement). The Federal Arbitration Act, also known as the FAA, generally governs arbitration provisions contained in contracts that expressly invoke its application, as well as those contained in contracts that involve interstate commerce. FEDERAL ARBITRATION ACT, 9 U.S.C. § 2; see also In re L & L Kempwood Assocs., L.P., 9 S.W.3d 125, 127 (Tex. 1999) (orig. proceeding) (per curiam). Even though the FAA is a federal act, Texas courts have the authority to enforce its provisions; and the FAA applies to cases pending in both state and federal courts when the agreement invokes its application

3 Abrogated in part on other grounds by In re Halliburton Co., 80 S.W.3d 566 (Tex. 2002) (orig. proceeding).

and also applies when the underlying transaction involves interstate commerce. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 112 (2001); Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 944-45 (Tex. 1996) (orig. proceeding); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 268 (Tex. 1992) (orig. proceeding).

By its motion and reply, the AutoZone Appellants fully met their burden.4 They demonstrated an enforceable, written arbitration agreement; application of the Federal Arbitration Act; and that Appellee Flores’ claims fall within the scope of the arbitration provision – assuming this is a question up for judicial determination. Appellee Flores failed to assert any issue that would defeat enforcement of the plan’s arbitration provisions; and, thus, the trial court abused its discretion in denying the motion to compel.

A. The Parties Entered into a Binding Arbitration Agreement to which the Federal Arbitration Act Applies

AutoZone’s Texas Occupational Injury Benefit Plan contains provisions requiring Flores to pursue any complaint against AutoZone through the appropriate arbitration procedures – including those relating to enforcement or interpretation of the arbitration provisions and those relating to any claim for personal injury. (CR 80) The benefits plan is a contract to which the FAA, and its strong preference for and presumptions in favor of arbitration, apply. See, e.g., Shearson/American

4 Of course, by filing its motion to compel and seeking to enforce the plan’s arbitration provisions, the AutoZone Appellants do not waive any arguments they may have based on the Appellee Flores’ failure to follow any aspect of the dispute resolution procedure.

Express, Inc. v. McMahon, 482 U.S. 220, 225 (1987) (noting that Federal Arbitration Act was specifically enacted to overcome “judicial hostility to arbitration agreements”).

proceeding); In re Kellogg Brown & Root, 80 S.W.3d at 617; see also In re Jim Walter Homes, Inc., 207 S.W.3d 888, 896 (Tex. App. – Houston 14th Dist.] 2006, orig. proceeding) (“Courts honor the parties’ agreement to be bound by the FAA, upholding choice-of-law provisions providing for application of the FAA.”). And Appellee Flores’ response acknowledged the plan’s express invocation of the FAA. (CR 147) (“Plaintiff’s Benefit Plan states that the Federal Arbitration Act . . . will govern the interpretation, enforcement, and proceedings under the arbitration requirement.”). While Flores argued that he fell within an exception to the FAA’s application, he never disputed its general application otherwise and admitted precisely the opposite.

Texas courts likewise construe the term “commerce” broadly, holding that the amount of or effect on interstate commerce need not be substantial. In re L & L Kempwood Assocs., L.P., 9 S.W.3d 125, 127 (Tex. 1999) (orig. proceeding); In re Merrill Lynch Trust Co. FSB, 123 S.W.3d 549, 553 (Tex. App. – San Antonio 2003, orig. proceeding); Lost Creek Mun. Utility Dist. v. Travis Indus. Painters, Inc., 827 S.W.2d 103, 105 (Tex. App. – Austin 1992, writ denied); see also BWI Cos., Inc. v. Beck, 910 S.W.2d 620, 621 (Tex. App. – Austin 1995, orig. proceeding). Instead, the contract need only involve or affect, i.e., relate to, interstate commerce because that “standard implements the strong federal policy favoring arbitration.” Lost Creek, 827 S.W.2d at 105.

The benefits plan at issue here involves interstate commerce in more than one way. First, the plan itself expressly references the involvement of interstate commerce by explaining that “AutoZone is engaged in transactions involving interstate commerce (for example, purchasing goods and services from outside Texas which are shipped to Texas and providing goods and services to customers from other states) and your employment involves such commerce.” (CR 82) Appellee Flores never disputed the involvement of interstate commerce as set forth in the plan. See In re Big 8 Food Stores, Ltd., 166 S.W.3d 869, 880 (Tex. App. – El Paso 2005, orig. proceeding) (noting company’s plan recitation that it is involved in interstate commerce and lack of evidence to the contrary offered by claimant); In re Gardner Zemke Co., 978 S.W.2d 624, 626 (Tex. App. – El Paso 1998, orig. proceeding) (noting that real parties in interest did not contest interstate commerce allegations). Flores’ employment relationship with AutoZone and the benefit plan itself necessarily “involve” interstate commerce. In re Big 8 Food Stores, Ltd., 166 S.W.3d at 880 (relationship between employer who is regularly engaged in activities related to interstate commerce and its employees is affected by interstate commerce as a matter of law).

Additionally, the health benefits plan is administered out of state. Specifically, the plan administrator and director of benefits are located in Memphis, Tennessee. (CR 88-89, 97) Again, that connection is more than enough to “involve” interstate commerce to trigger application of the FAA. See, e.g., In re Nexion Health at Humble, Inc., 173 S.W.3d 67, 69 (Tex. 2005) (orig. proceeding) (“Because ‘commerce’ is broadly construed, the evidence of Medicare payments made to HHC on John’s behalf is sufficient to establish interstate commerce and the FAA’s application in this case”); City of San Antonio v. International Ass’n of Fire Fighters, Local 624, Nos. 04-12-00783-CV and 04-13-00109-CV, 2013 WL 5508408, *2 (Tex. App. – San Antonio, Oct. ^[2], 2013, no pet., orig. proceeding) (mem. op.) (FAA applied to Collective Bargaining Agreement that encompassed provision of health insurance benefits); Petroleum Analyzer Co. LP v. Franek Olstowki, No. 01-09-00076-CV, 2010 WL 2789016, *6 (Tex. App. – Houston [1st Dist.], Jul. 15, 2010, no pet.) (mem. op.) (“[E]ven if the parties had not expressly agreed that interstate commerce is affected, PAC is a Delaware limited partnership; therefore, this agreement affects interstate commerce.”); Manahan v. Meyer, 862 S.W.2d 130, 133 (Tex. App. – Houston [1st Dist.] 1993, writ denied) (“Appellants pled that Haworth, a Michigan corporation with a home office in Michigan, bought insurance from Safeco, whose home office is in Washington, to cover Manahan and other Haworth employees working in Texas. Thus, interstate commerce by Haworth was admitted”); United States v. Lauersen, No. 98 CR. 1134(WHP), 1999 WL 637237, *6 (S.D.N.Y., Aug. 20, 1999) (not designated for publication) (“It requires little effort, and certainly no accretion of ‘inference upon inference,’ . . . to find a rational bases for concluding that the administration of private health care programs is an economic activity that substantially affects interstate commerce”). Based on the foregoing, the FAA controls.

B. The Arbitration Agreement Encompasses Mario Flores’ Claims; Regardless, the Issue Is One for the Arbitrator to Decide recognized, when an arbitration agreement includes such expansive language, the determination of whether a claim falls within the scope of such an agreement is reserved for the arbitrator. See, e.g., Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 61 & n.37 (Tex. 2008); Seven Hills Commercial, LLC v. Mirabal Custom Homes, Inc., 442 S.W.3d 706, 711 (Tex. App. – Dallas 2014, pet. denied); IHS Acquisition No. 171, Inc. v. Beatty-Ortiz, 387 S.W.3d 799, 807-08 (Tex. App. – El Paso 2012, no pet.) (“An arbitration provision may give the arbitrator the power to resolve gateway issues regarding validity and enforceability of the arbitration agreement. In that event, the entire matter of arbitrability is transferred from the courts to the arbitrator. . . . Arbitration agreements that clearly and unmistakably show intent to assign gateway issues to the arbitrator are fully enforceable.”), citing Rent-A- Center, West, Inc. v. Jackson, 561 U.S. 63, 72-73 (2010); Ernst & Young LLP v. Martin, 278 S.W.3d 497, 500-01 (Tex. App. – Houston [14th Dist.] 2009, no pet., orig. proceeding); Valdez v. Autozone, Inc., No. H-14-3386, 2015 WL 1099700, *1 (S.D. Tex., Feb. 17, 2015) (not designated for publication).

Given the foregoing, the arbitration provisions expressly reserve any questions regarding the scope of the arbitration agreement and whether it encompasses Mario Flores’ claims for the arbitrator’s determination. Regardless, Mario Flores’ claim for damages alleged to have resulted from an on-the-job injury clearly fall within the provisions’ scope.

claim); In re H.E. Butt Grocery Co., 17 S.W.3d 360, 367 (Tex. App. – Houston [14th Dist.] 2000, orig. proceeding) (same). Because AutoZone demonstrated the existence of a valid agreement and claims that fall within its scope (though that issue is one for the arbitrator’s determination), the trial court was obligated to grant AutoZone’s motion. The Court should reverse the trial court’s denial.

III. None of Appellee Flores’ Efforts to Thwart the Arbitration Agreement Have Merit Once the movant has demonstrated a mandatory referral to arbitration and the party opposing arbitration has failed to prove a defense to its enforcement, the trial court has no discretion but to compel arbitration and stay its own proceedings. In re FirstMerit Bank, N.A., 52 S.W.3d at 753-54; see also J.M. Davidson v. Webster, 128 S.W.3d 223, 227 (Tex. 2003) (stating that, if trial court finds a valid agreement, burden shifts to party opposing arbitration to raise an affirmative defense to enforcement). Appellee Flores tried to interpose three roadblocks to AutoZone’s motion to compel: (1) the exception for “contracts of employment” contained in section 1 of the FAA; (2) the purported bar of the Texas Labor Code; and (3) a claim of procedural unconscionability. Courts have rejected all three in contexts analogous to this case and did so through binding precedent that this Court is bound to follow. Moreover, the language of the parties’ arbitration agreement requires these threshold issues and defenses to be referred to arbitration for resolution by the arbitrator. Because Flores raises arguments that must be decided by the arbitrator and has, in any event, failed to prove any defense, the trial court erred in denying the motion to compel.

A. Courts Recognize That the Federal Arbitration Act’s Exception for “Employment” Agreements Applies Solely to Transportation Workers, Unlike Appellee Flores

[FAA].”); see also BWI Cos. v. Beck, 910 S.W.2d 620, 622 (Tex. App. – Austin 1995, orig. proceeding); White-Weld & Co., Inc. v. Mosser, 587 S.W.2d 485, 487 (Tex.Civ.App. – Dallas 1979, writ ref’d n.r.e.).

Importantly, the Circuit City Court explained that the phrase “engaged in . . . interstate commerce,” as used in section 1’s exemption, was considerably narrower than the phrase “involving commerce” used in section 2 to describe the kinds of agreements to which the FAA applies. 532 U.S. at 112. Flores, at the hearing on AutoZone’s motion to compel, led the trial court astray by collapsing the two inquiries. (RR at 7-8) But they are different, as the Supreme Court of the United States has explained. The FAA applies to employment contracts that evidence a transaction involving interstate commerce – the only exception being when the employee is actually engaged in such commerce, i.e., actually engaged in the transportation of goods. 9 U.S.C. §§ 1, 2; Circuit City, 532 U.S. at 114-19.

Appellee Flores made no argument and offered no evidence that he was a transportation worker actually engaged in the movement of goods in interstate commerce within the meaning of section 1 of the FAA. Rather, he confirmed his work in a single retail location – just like the retail employee the Supreme Court found did not fall within section 1’s exception. Circuit City, 532 U.S. at 109. (CR 145) Rather than acknowledge governing Supreme Court authority, Flores offered a single citation to In re Swift Transp. Co., 311 S.W.3d 484, 486 (Tex. App. – El Paso 2009, orig. proceeding), in which the court of appeals held that the FAA did not apply to an arbitration agreement between a truck driver and his employer. But what Flores failed to understand is that trucks drivers are “transportation workers” as that term is used in section 1, making In re Swift’s holding inapplicable here to a retail employee. As a result, the trial court’s order denying the AutoZone Appellants’ motion to compel should be reversed and the agreement enforced.

B. The Texas Workers’ Compensation Act Does Not Preclude Enforcement of the Plan’s Arbitration Provisions, Nor Could It in Light of the Federal Arbitration Act’s Supremacy5

Appellee Flores next asserted that the arbitration agreement violated section 406.033(e) of the Texas Labor Code because it waived his cause of action before his workplace injury occurred. That argument, too, lacks merit and provides no basis for the denial of AutoZone’s motion to compel. 5 In the context of this point, Appellee Flores references that the AutoZone Appellants did not sign the arbitration agreement and that he had no recollection of doing so. Assuming that this could be construed as an additional defense to the enforcement of the arbitration provisions, the FAA does not require arbitration clauses to be signed, as long as they are written and agreed to by the parties. See, e.g., In re AdvancePCS Health, L.P., 172 S.W.3d 603, 606 n.5 (Tex. 2005); see also In re Macy’s Tex., Inc., 291 S.W.3d 418, 418 (Tex. 2009) (orig. proceeding) (per curiam) (“[t]he FAA contains no requirements for the form or specificity of arbitration agreements except that they be in writing; it does not even require that they be signed”); see also In re Dillard Dep’t Stores, 198 S.W.3d 778, 780-81 (Tex. 2006) (orig. proceeding) (at-will employee who receives notice of an employer’s arbitration policy and continues working with knowledge of the policy accepts the terms as a matter of law); In re Halliburton Co., 80 S.W.3d 566, 569 (Tex. 2002) (orig. proceeding) (holding that continued employment constituted acceptance as a matter of law). Regardless, Appellee Flores did sign the acknowledgement form, which reiterated his acceptance and agreement to comply with the plan’s arbitration provisions. See, e.g., In re Dallas Peterbilt, Ltd., L.L.P., 196 S.W.3d 161, 163 (Tex. 2006) (orig. proceeding) (by signing the acknowledgement, employee acknowledged receipt of the mutual agreement to arbitration claims); In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005) (orig. proceeding) (“Absent fraud, misrepresentation, or deceit, a party is bound by the terms of the contract he signed, regardless of whether he read it or thought it had different terms.”). (CR 140) 1. The Supreme Court of Texas Has Rejected This Exact

Argument, and Flores Conceded as Much Below

Section 406.033(e) of the Texas Labor Code provides that a cause of action against an employer by an employee not covered by workers’ compensation insurance brought to recover damages for personal injuries sustained in the course and scope of employment “may not be waived by an employee before the employee’s injury or death.” TEX. LAB. CODE § 406.033(a), (e) (West 2015). However, section 406.033(e) is no impediment to arbitration because the Supreme Court of Texas has rejected Flores’ exact argument. In re Golden Peanut Co., LLC, 298 S.W.3d 629, 631 (Tex. 2009) (orig. proceeding) (per curiam).

Specifically, the Supreme Court examined the interaction between section 406.033 and the FAA and held that section 406.033(e) does not render an arbitration agreement void. In re Golden Peanut Co., LLC, 298 S.W.3d at 631. The Court explained that “an agreement to arbitration is a waiver of neither a cause of action nor the rights provided under section 406.033(a), but rather an agreement that those claims should be tried in a specific forum. Accordingly, section 406.033(e) does not render the arbitration agreement void.” See also In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 423 (Tex. 2010) (orig. proceeding) (same).

In apparent recognition of this precedent, Flores withdrew the point at the hearing on AutoZone’s motion to compel. (RR at 7) Thus, to the extent that this argument would not also be subject to arbitration as one of the threshold questions the parties agreed would be resolved by the arbitrator – because the parties agreed to submit all issues of the agreement’s interpretation and enforcement to arbitration – Flores’ concession and binding Supreme Court precedent preclude it anyway.

S.W.3d 370, 374 (Tex. App. – Texarkana 1999, orig. proceeding) (the FAA “takes precedence over state attempts, legislative or judicial, to undercut the enforceability of arbitration agreements”). As a result, to the extent section 406.033(e) could be said to conflict with the FAA following In re Golden Peanut Co., to the extent Flores did not concede the point below, and to the extent the issue were one for the Court to decide, the FAA would preempt section 406.033(e) and preclude it from barring enforcement of the parties’ arbitration agreement. See In re Border Steel, Inc., 229 S.W.3d 825, 832 (Tex. App. – El Paso 2007, no pet.).

C. Appellee Flores Failed to Demonstrate Procedural Unconscionability6 invalidated by ‘generally applicable contract defenses, such as fraud, duress, or unconscionability,’” (Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68 (2010)), Flores necessarily attacks the benefits agreement as a whole – as opposed to the arbitration agreement exclusively. The arbitration provisions at issue were one part of a larger occupational injury benefit plan, which Appellee Flores acknowledged by his signature on July 28, 2005. (CR 140) Flores’ claim of invalidity by virtue of being unable to read any part of that agreement necessarily challenges the entire agreement rather than just the arbitration provision in particular.

Arguments against the validity of an agreement, of which an arbitration provision is merely a part, are referable to arbitration along with the rest of the case. See, e.g., Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 406 (1966). In Prima Paint, a party defended against a referral to arbitration on the basis that it had been fraudulently induced to sign the contract containing the arbitration provision. 388 U.S. at 404. Settling a conflict among the appellate courts, the Supreme Court of the United States held that “a federal court may consider only issues relating to the making and performance of the agreement to arbitrate.” Id. “[U]nless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46 (2006) (holding that Prima Paint rule also applies to FAA cases pending in state courts, as a matter of substantive federal arbitration law). “[A] party’s challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.” Rent-A-Center, 561 U.S. at 70.

Following these principles, Texas courts have held that the defense of unconscionability must be determined by the arbitrator when it necessarily refers to the agreement as a whole. See, e.g., In re Olshan Found. Repair Co., 328 S.W.3d 883, 898 (Tex. 2010) (orig. proceeding) (“[W]hen the parties have contracted for arbitration of their disputes, a trial court ‘may consider only issues relating to the making and performance of the agreement to arbitrate.”); Perry Homes v. Cull, 258 S.W.3d 580, 589 (Tex. 2008) (“[A]rbitrators generally must decide defenses that apply to the whole contract, while courts decide defenses relating solely to the arbitration clause.”); In re FirstMerit Bank, N.A., 52 S.W.3d at 756 (“The do Los Santoses assert the defenses of unconscionability, duress, fraudulent inducement, and revocation. We again note that these defenses must specifically relate to the Arbitration Addendum itself, not the contract as a whole, if they are to defeat arbitration.”); Henry v. Gonzalez, 18 S.W.3d 684, 691 (Tex. App. – San Antonio 2000, pet. dism’d, orig. proceeding) (allegation by non-movant that he was fraudulently induced to sign the contract containing arbitration clause due to his decreased mental capacity was an issue referable to arbitration).

In a case bearing striking similarities to the circumstances alleged here, a federal district court held that a claim of procedural unconscionability was for the arbitrator to determine. See Estate of Benitez v. Sears, Roebuck & Co., No. 3:13- CV-0468-D, 2013 WL 4223875 (N.D. Tex., Aug. 14, 2013). There, the claimant argued that he could not read or write English and had little formal education in Spanish and, therefore, the arbitration agreement was invalid. Id. at *3. The court held that “because plaintiffs’ challenge to validity attacks the entire agreement, not the arbitration agreement specifically, [it] therefore is a question for the arbitrator to decide.” Id. at **3-4 (“[T]he arbitration agreement in this case is contained within the 51-page Plan; it is not a stand-alone agreement. And when Juan electronically acknowledged that he had completed his Plan training, he was acknowledging that he had received training regarding the Plan and its requirements generally, which included the arbitration agreement. Plaintiffs provide no evidence that Juan’s illiteracy in English, limited English comprehension, or computer illiteracy invalidate the arbitration clause specifically rather than the Plan in its entirety.”) (emphasis in original).

Because the claim of unconscionability went to the plan as a whole – even though the plaintiffs only desired to invalidate the arbitration clause – the decision was for the arbitrator to make in this case just as in Estate of Benitez. As a result, the trial court erred in denying AutoZone’s motion to compel.

providing a contract for further discussion of the plan in Spanish. (CR 101) As a result, any claim by Flores that he could not read or did not have the opportunity to read the plan documents in Spanish contradicts their express terms and cannot be considered. See, e.g., In re H.E. Butt Grocery Co., 17 S.W.3d 360, 371 (Tex. App. – Houston [14th Dist.] 2000, orig. proceeding); see also Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, 952 (1960) (explaining that parol evidence rule precludes consideration of extrinsic evidence to contradict, vary, or add to the terms of an unambiguous written agreement absent fraud, accident, or mistake); see also Cintas Corp. v. Quevedo, No. 04-11-00142-CV, 2012 WL 1940642, *3 (Tex. App. – San Antonio, May 30, 2012, no pet.) (mem. op.) (“The parol evidence rule is not a rule of evidence, but a rule of substantive law. . . . Testimony that varies the legal effect of a writing, whether objected to or not, is without probative force.”). Flores is without evidence to support a procedural unconscionability defense, and the trial court erred in denying AutoZone’s motion to compel.

b. Texas Law Does Not Recognize an Inability to Read English as a Defense to Contract – Even with an Unconscionability Label – and Flores Offered No Supportive Evidence in Any Event i. Flores Offered No Proof of an Inability to Speak, Read, or Write English

Generally speaking, procedural unconscionability refers to the circumstances surrounding the adoption of a contract. In re Halliburton Co., 80 S.W.3d at 571.

It relates to the making or inducement of the contract, focusing on the facts surrounding the bargaining process. TMI, Inc. v. Brooks, 225 S.W.3d 783, 792 (Tex. App. – Houston [14th Dist.] 2007, pet. denied, orig. proceeding). Again, Flores based his assertion of procedural unconscionability on his claim that he cannot read or write English, coupled with his claim that the plan documents he received were in English. (CR 149-51) However, even assuming Flores’ proffer could be considered, Flores offered absolutely no evidence that he could not speak, read, or write English. His initial affidavit avers only that he did not receive the AZTEC Advantage document in Spanish. (CR 155) It nowhere denies an ability to read the English version that he acknowledged he did receive. (CR 140) And the “evidence” he tried to offer by way of his post-hearing supplement likewise falls far short of that needed to prove an unconscionability defense.

After the hearing on AutoZone’s motion to compel, Flores filed supplemental evidence, to which AutoZone objected. (CR 203-87, 288-93) That offer consisted of employment forms and the transcripts of telephone conversations that purportedly had been translated from Spanish to English. (CR 207-87) Those documents nowhere demonstrate Flores’ inability to speak, read, or write English. Indeed, on their face, many of them demonstrate precisely the opposite. To fill in the blanks, Flores offered only unsworn statements of his purported inability to speak, read, or write English – in the notice of filing to which the supplemental evidence was attached. (CR 204) However, neither statements contained in motions nor arguments of counsel are evidence. Elkins v. Stotts-Brown, 103 S.W.3d 664, 669 (Tex. App. – Dallas 2003, no pet.); Madeksho v. Abraham, Watkins, Nichols & Friend, 57 S.W.3d 448, 455 (Tex. App. – Houston [14th Dist.] 2001, pet. denied) (noting that conclusory arguments contained in summary- judgment response are not evidence). Flores failed to include in the record any evidence to substantiate his claim of procedural unconscionability.

ii. Texas Does Not Recognize Illiteracy as a Defense to Contract Generally or as a Defense to Arbitration Specifically

Regardless, Texas courts have held for decades that, absent proof of mental incapacity, a person who signs a contract is presumed to have read and understood that contract unless he was prevented from doing so by trick or artifice. See Associated Employers Lloyds v. Howard, 156 Tex. 277, 294 S.W.2d 706, 708 (1956); Indemnity Ins. Co. of N. Am. v. W.L. Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553, 556-57 (1937). Equally well-settled is that illiteracy will not relieve a party from the consequences of a contract because “[e]very person who has the capacity to enter into a contract, in the absence of fraud, misrepresentation, and concealment, is held to know what words were used in the contract, to know their meaning, and to understand their legal effect.” Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13, 17 (Tex. App. – San Antonio 1998, no pet.).

Numerous courts have rejected allegations similar to those asserted by Flores in an effort to avoid an otherwise binding agreement. See, e.g., Lopez v. Garbage Man, Inc., No. 12-08-00384-CV, 2011 WL 1259523, **7-8 (Tex. App. – Tyler, Mar. 31, 2011, no pet.) (mem. op.) (reiterating principles set forth above and rejecting challenge to release agreement based on claim that plaintiff was limited in his ability to read or write English and, thus, unable to understand complex legal document such as release agreement); In re Big 8 Food Stores, Ltd., 166 S.W.3d 869, 878 (Tex. App. – El Paso 2005, orig. proceeding) (“No evidence suggests that Marquez lacked the mental capacity to contract. She argues that she was rushed to sign the agreement and did not understand its terms. The undisputed evidence is that she signed the agreement, was injured on the job and actually received and accepted benefits under the plan. The fact that she now contends that she did not understand a specific clause or term is immaterial to the validity of the agreement.”); De Villagomez v. First Nat’l Bank, No. 13-04-00367-CV, 2005 WL 1832800, **1-2 (Tex. App. – Corpus Christi, Aug. 4, 2005, pet. denied) (mem. op.) (“In the absence of fraud, a party’s failure to read an instrument before signing it is not a ground for avoiding it. . . . This is true even in the case of illiteracy or an inability to read English.”); Tamez v. Southwestern Motor Transport, Inc., 155 S.W.3d 564, 570 (Tex. App. – San Antonio 2004, no pet.) (reiterating principles set forth above and holding that the plaintiff, a resident alien from Mexico and for whom English was not his first language, was bound by release agreement absent evidence of fraud, misrepresentation, or concealment in the procurement of the agreement, of which there was no evidence); Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714 S.W.2d 144, 146 (Tex. App. – Houston [1st Dist.] 1986, no writ) (rejecting challenge to contract by one claiming that he could not read, write, or speak English).

In In re Ledet, No. 04-04-00411-CV, 2004 WL 2945699, **4-6 (Tex. App. – San Antonio, Dec. 22, 2004, orig. proceeding) (mem. op.), this Court applied these well-entrenched principles of Texas contract law to reject a claim of procedural unconscionability by one seeking to avoid an arbitration agreement. In that case, the claimant asserted procedurally unconscionability of an arbitration agreement based on his inability to understand, speak, or read English; the failure of anyone to explain the agreement to him; and his having felt pressured to sign the arbitration agreement. Id. at *5. The claimant did not ask questions about the agreement or seek an explanation of it. Id.

The Ledet Court referenced its prior decision in Vera and noted the absence of any allegation of fraud, misrepresentation, or concealment. 2004 WL 2945699, at **5-6. “That [the claimant] did not speak English and therefore could not read the contract does not affect the validity of the contract.” Id. at *6. The Court enforced the arbitration agreement and held that the trial court had no discretion but to compel arbitration and stay its own proceedings. Id.; see also ReadyOne Indus., Inc. v. Flores, ___ S.W.3d ___, 2014 WL 6982275, **8-9 (Tex. App. – El Paso, Dec. 10, 2014, pet. filed) (rejecting defense of procedural unconscionability asserted by claimant who was unable to read English because company provided him with Spanish language version of documents and because claimant, who signed acknowledgment form, was presumed to have known and fully comprehended document and its legal effect absent evidence of trick or artifice); In re Border Steel, Inc., 229 S.W.3d 825, 833-35 (Tex. App. – El Paso 2007, orig. proceeding) (rejecting claim of procedural unconscionability due to Spanish speaking individual’s inability to read agreement in English; evidence showed that agreement was available in both English and Spanish translations, and illiteracy or a language barrier is no defense to contract; moreover, claimant accepted benefits under the plan); In re Rangel, 45 S.W.3d 783, 786-87 (Tex. App. – Waco 2001, orig. proceeding) (rejecting claim of procedural unconscionability asserted by 75- year-old man who had never attended school, was functionally illiterate, and was hard of hearing; claimant never gave the impression he did not understand or could not read the contract, the arbitration provision was never hidden from him, and there was no evidence that the company concealed or misstated the existence or terms of the arbitration provision). Flores has no unconscionability defense here.

iii. This Court Has Rejected Flores’ Authority, and Flores Offered No Evidence of Fraud on AutoZone’s Part Regardless

Despite this clear precedent, Flores relied on two decisions to support a defense of procedural unconscionability here: In re Turner Bros. Trucking Co., Inc., 8 S.W.3d 370 (Tex. App. – Texarkana 1999, orig. proceeding); and Prevot v. Phillips Petroleum Co., 133 F.Supp.2d 937 (S.D. Tex. 2001). In In re Turner Bros., the court held an arbitration agreement to be procedurally unconscionable where the employees who presented the agreement did not understand it, the relator had no one to explain the document and did not understand it, and the claimant was functionally illiterate and had a reading disorder. 8 S.W.3d at 377. And in Prevot, the claimants testified that they could not read English and that the documents were not translated for them. 133 F.Supp.2d at 940. Further, they testified that their supervisors told them not to worry about the nature of the agreement and to quickly sign the document so they could get back to work. Id.

Both of those decisions are distinguishable from the circumstances here. There is no evidence that AutoZone personnel did not understand the agreement or that Flores asked any questions or sought an explanation of the agreement. Rather, the evidence is precisely the opposite. (CR 172-202) Though AutoZone explained that it had no reason to know that Flores could not read English – personnel had conversations with Flores in English, and Flores routinely furnished completed company documents in English – Spanish materials were available to Flores in the event he had asked. (CR 172-78, 192-202) However, Flores never sought a Spanish translation or any other assistance with the plan document, though both were readily available. (CR 175-78) AutoZone provided a notice in Spanish on the face of the benefit summary and also made available the contract documents in Spanish. (CR 101, 172-78) Flores not only signed the acknowledgement form in 2005, but he also acknowledged that he had read and understood the plan documents again in 2011 and 2012 – this time through a computer system that provided a Spanish translation of all relevant documents by merely clicking a button to make a Spanish-language selection. (CR 174-75, 180, 182, 187-91)

In any event, this Court has rejected the holding in In re Turner Bros. because “it is in direct conflict with [the Court’s] holding in Vera that illiteracy is not a defense to contract formation.” In re Ledet, 2004 WL 2945699, at *6. And, of course, neither a decision from the Texarkana Court of Appeals nor from a federal district court binds this Court. See, e.g., Penrol Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (“While Texas courts may certainly draw upon the precedents of the Fifth Circuit, or any other federal or state court, in determining the appropriate federal rule of decision, they are obligated to follow only higher Texas courts and the United States Supreme Court.”) (emphasis in original).

Moreover, under the doctrine of horizontal stare decisis, the Court’s prior holdings in Vera and In re Ledet govern and control the outcome here. Under the doctrine, a panel of this Court is bound by a prior holding of another panel of this Court absent an intervening, on point, and contrary holding from a higher court or this Court sitting en banc. Glassman v. Goodfriend, 347 S.W.3d 772, 781 (Tex. App. – Houston [14th Dist. 2011, pet. denied) (en banc); see also Medina v. Tate, 438 S.W.3d 583, 588 (Tex. App. – Houston [1st Dist.] 2013, no pet.) (same); MobileVision Imaging Servs., L.L.C. v. LifeCare Hosps. of N. Tex., L.P., 260 S.W.3d 561, 566 (Tex. App. – Dallas 2008, no pet.) (same). Stare decisis emanates from a desire for predictability in the law, which allows people to rationally order their conduct and affairs. Grapevine Excavation, Inc. v. Maryland Lloyds, 35 S.W.3d 1, 5 (Tex. 2000). No intervening decision of either the Supreme Court of the United States, the Supreme Court of Texas, or this Court en banc has held contrary to the Court’s holdings in Vera or In re Ledet. Rather, decisions made by the Supreme Court of Texas are in accord. As such, those decisions govern here and require a reversal of the trial court’s order.

And, in a more reasoned and persuasive federal decision, the court in Estate of Benitez held that the plaintiffs did not demonstrate unconscionability. 2013 WL 4223875, at *4. The court turned to the mountain of Texas precedent rejecting illiteracy as a defense to contract. Id. The court also addressed those decisions that have found procedural unconscionability based, in part, on English illiteracy – noting that they all involved other facts indicating that the signatory was denied an opportunity to review and understand the agreement, beyond simply being unable to read English. Id. This included instances not present here: (1) the employer knew the employee did not speak English, explained some of the agreement in Spanish, but did not translate the arbitration provision; (2) no one was available to explain the agreement to the employee, including the representative who gave him the agreement and did not himself understand it; and (3) the employees were told not to worry about the contents of the agreement and to hurry up and sign it so that they could get back to work. Id. By contrast, the evidence before the Benitez court showed that the plan was available in both English and Spanish – just as here. Id. at *5. Following Vera, Ledet, Tamez, and Benitez, the Court should reject the claimed defense of procedural unconscionability and compel Flores to resolve his claims by arbitration.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellants AutoZone, Inc. and AutoZoners, L.L.C. respectfully request that this Court reverse the trial court’s order denying their Motion to Compel Arbitration, that the Court render judgment enforcing the parties’ arbitration agreement by compelling arbitration and staying the trial court’s proceedings pending arbitration, and that the Court grant Appellants such other and further relief to which they are entitled.

Respectfully submitted, BRETT REYNOLDS & ASSOCIATES, P.C. THE LAW OFFICE OF Brett T. Reynolds JACQUELINE M. STROH, P.C. State Bar No. 16795500 Jacqueline M. Stroh [email protected] State Bar No. 00791747 P. Brook Swilley [email protected] State Bar No. 24041997 10101 Reunion Place, Suite 600 [email protected] San Antonio, Texas 78216 1250 N.E. Loop 410, Suite 420 (210) 477-7416 San Antonio, Texas 78209 (210) 477-7466 (telecopier) (210) 805-9799 (210) 805-9654 (telecopier)

By: /s/ Jacqueline M. Stroh Jacqueline M. Stroh

ATTORNEYS FOR APPELLANTS

AUTOZONE, INC. AND AUTOZONERS, L.L.C.

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION

Pursuant to Texas Rule of Appellate Procedure 9.4(i), the undersigned certifies that this brief complies with the type-volume limitations; that, exclusive of the exempted portions, the brief contains 9,708 words (counting all appropriate footnotes); and that the brief has been prepared in proportionally-spaced typeface using Times New Roman Font 14 in body text and Font 12 in footnotes.

/s/ Jacqueline M. Stroh Jacqueline M. Stroh

CERTIFICATE OF SERVICE

I certify that a true copy of the foregoing Brief of Appellants was on the 23rd day of June, 2015, served by in accordance with the Texas Rules of Appellate Procedure on the following counsel of record:

Jaime M. Lynn [email protected] Kiara Martinez [email protected] THE CARLSON LAW FIRM, P.C.

11606 North Interstate Highway 35 Austin, Texas 78753 -and- 400 West Jasper Road Killeen, Texas 76542 Attorneys for Plaintiff

/s/ Jacqueline M. Stroh Jacqueline M. Stroh

CAUSE NO. DC-15-6

MARIO FLORES, § IN THE DISTRICT COURT Plaintiff § § § vs. § 229m JUDICW.. DISTRICT § AUTOZONE, INC. AND AUTOZONERS § L.L.C. D/B/AAUTOZONE#3115, § Defendants § STARR COUNI'Y, TEXAS

ORDER

On this day, crune to be heard "Defendants' Motion to Compel/Enforce Arbitration." After considering Defendants' Motion, Plaintiff's Response, the evidence introduced, and arguments by counsel, the Court hereby DENIES Defendants' Motion to Compel/Enforce Arbitration in its entirety.

ARBIT'RATIOU. .1also ael<noWledOe that Ibis SPD .lncl.udes.a rrianda1ory .company pollcy reqtllJiog U,at oer:tafr'I c;l"lms or di~pute& n!lating ·tQ an on-tile-job· rnjury (that· cal')not otherwl~ be r&SOlved between t~:e Comp,ny ·and me). must be Q1'.~ltt~· tQ an arbitrator, ~~r than a )u.dgi -~rr~ Jur-y lo court I ·uhderst)!Qd _that by· ~oetving. this SPD· ~nd be(:(:Jming ~m1,)lo~ed. (pr :oot(11J1.~l"~' hly emetoxm~nt), With the ptinipa:ny.~.. -~~X )ii)ie oYI er. after August 1.i 40~~· .' am acel:lptlng and ~gr~eu;ig t(J· .c;Omply .with ttlese" a(bJtratJon ~~!r:ernents~ I l!J1dersl~hd tfuif the CQn;ipa{'ly ia ~l~o ,itlccep.ting aAd agreeing to rompJy With these arQltfa~on raquJremenls~ An ccw~red· claims brbilght -~Y. my sp:ouse, chll'dten. beneflciarles, r~pr~sentatives, ~eQJ~P~. adinlr!fsfnllo~, guardians. helrs cir .assigns are also. subjeat. fo, th& Campaots ~rbltratlon policy, ·a~ :;:111y dects[on .of an lirbltmtor will be final and blhdlng on-such p_ersQ.rnran:<1 the· c;Qmpsny~ . ..

· x~., . . .. . . ' . ;c.:_-,- AQ0is\i\~ I , -Date

- \.