In re H&R Block (Tex. 2007)

In Re H&R Block, No. 04-0061 (Tex. Aug. 24, 2007)(per curiam)(investments, arbitration mandamus granted, company's name change irrelevant to validity and enforceability of arbitration agreement) In re H&R Block Financial Advisors, Inc. and Robert Bullock, Relators ══════════════════════ On Petition for Writ of Mandamus ══════════════════════ PER CURIAM After losing a substantial investment in the Enron debacle, two investors sued their investment advisor and his firm. Although they had signed contracts with the firm containing broad arbitration clauses, they sought to avoid them on grounds that (1) the firm had changed its name, and (2) the employee did not sign the contracts in his personal capacity. Because all the other terms of the parties’ contracts could not be avoided on these grounds, neither could the arbitration clauses. Accordingly, we conditionally grant mandamus relief. See In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005) (“Mandamus relief is proper to enforce arbitration agreements governed by the FAA.”). In 1992 and again in 1996, Robert and Gilda Bonds entered into investment account agreements with Olde Discount Corporation. Both contracts contained arbitration clauses covering “any and all controversies or claims arising out of the relationship established by this agreement or any corresponding agreement to arbitration.” Robert Bullock, an Olde employee, signed both on Olde’s behalf. When Olde changed its name in 2000 to H&R Block Financial Advisors, Inc., Bullock continued to advise the Bonds, and recommended investments in Enron Corporation. In 2001, H&R Block sent the Bonds an Addendum to their account agreements that changed some terms but did not mention arbitration. In October 2002, the Bonds sued H&R Block and Bullock alleging negligence, gross negligence, fraud, breach of fiduciary duty, and violations of the Texas Securities Act and the Texas Deceptive Trade Practices Act. The Bonds sought recovery of their entire $119,031.92 investment in Enron. H&R Block and Bullock moved to stay proceedings pursuant to the Federal Arbitration Act.[1] The trial court denied the motion, and the court of appeals denied mandamus relief. __ S.W.3d __ (Tex. App.–Corpus Christi 2003). The Bonds concede signing an arbitration agreement with Olde, but argue that H&R Block and Bullock are nonsignatories who cannot invoke it. But H&R Block established that it was the same company as Olde, now operating under a different name. H&R Block tendered affidavits and a Certificate of Amendment showing that Olde amended its Articles of Incorporation in July 2000 to change its name to H&R Block. Under ordinary legal principles, a contracting party that has merely changed its name is still a contracting party. See, e.g., Coulson v. Lake LBJ Mun. Util. Dist., 781 S.W.2d 594, 595 (Tex. 1989); Texas Co. v. Lee, 157 S.W.2d 628, 630 (Tex. 1941). Accordingly, the company’s change of name does not prevent it from invoking its own arbitration agreements. See Contec Corp. v. Remote Solution Co., 398 F.3d 205, 207 (2d Cir. 2005); Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir. 1993). Nor can the Bonds skirt arbitration with Bullock when the substance of the suit is against both him and his employer. Bullock had no duty to provide investment advice to the Bonds but for their contract with Olde/H&R Block, and the damages the Bonds seek is the investment they made through that contract. As Bullock’s liability arises from and must be determined by reference to the parties’ contract rather than general obligations imposed by law, the suit is subject to the contract’s arbitration provisions. In re Weekley Homes, L.P., 180 S.W.3d 127, 131–32 (Tex. 2005); see also In re Vesta Ins. Group, Inc. 192 S.W.3d 759, 762 (Tex. 2006) (“When contracting parties agree to arbitrate all disputes ‘under or with respect to’ a contract (as they did here), they generally intend to include disputes about their agents’ actions . . . .”). The Bonds claim the 2001 Addendum (which contained no arbitration clause) overrides the earlier account agreements (which did). But the Addendum’s first two sentences expressly incorporate all nonconflicting terms of the earlier agreements: The following are changes and/or additions to your Investor Account Agreement that you may have signed previously. . . . [W]here conflict exists, this addendum shall control and be binding on you. As the Addendum was silent regarding arbitration, it did not conflict with the existing arbitration provisions and thus left them intact. Finally, the Bonds assert the trial court properly refused to compel arbitration because the evidence regarding Olde’s name change was not produced promptly in response to discovery requests. But even if exclusion were a proper discovery sanction (a question we do not reach), the trial court did not exclude it here; to the contrary, the court gave the Bonds extra time to respond to the evidence before ruling on the motion. By the time the trial court made that ruling three months later, the Bonds had filed nothing contradicting Olde’s change of name evidence. Once this undisputed evidence was tendered, the court was not at liberty to ignore it. Accordingly, without hearing oral argument, see Tex. R. App. P. 52.8(c), we conditionally grant the writ of mandamus and direct the trial court to order that the Bonds’ claims proceed to arbitration. Our writ will not issue unless the trial court fails to do so. OPINION DELIVERED: August 24, 2007 [1] The defendants also moved to compel arbitration under the Texas Arbitration Act and filed an interlocutory appeal related thereto. We do not address that claim as the court of appeals determined that the FAA applies and neither party contests that determination.

In re RLS Legal Solutions (Tex. 2007)

In re RLS Legal Solutions, LLC No. 05-0290, Tex. Apr. 20, 2007)(per curiam)(arbitration mandamus) In re RLS Legal Solutions, LLC, and Yandell Rogers, III, Relators ══════════════════════ On Petition for Writ of Mandamus ══════════════════════ PER CURIAM The court of appeals held that the trial court did not abuse its discretion in denying relators’ motion to compel arbitration of this employment dispute on the basis that relators used economic duress to force the plaintiff to agree to arbitration. In re RLS Legal Solutions, L.L.C., 156 S.W.3d 160, 165 (Tex. App.–Beaumont 2005). But the plaintiff’s only evidence is that she was under duress to sign an employment agreement containing an arbitration provision; there is no evidence that she was under duress specifically to agree to arbitration apart from the other provisions of the agreement. We held in In re FirstMerit Bank, N.A., that duress and other such defenses must “specifically relate to the Arbitration Addendum itself, not the contract as a whole, if they are to defeat arbitration. Defenses that pertain to the entire . . . contract can be arbitrated.” 52 S.W.3d 749, 756 (Tex. 2001) (footnotes omitted). Accordingly, we grant relators’ petition for mandamus to compel arbitration. Relator RLS Legal Solutions, L.L.C. employed Amy Cobb Maida as a sales representative from 1997 to 2002. During the latter part of her employment, when relator Yandell Rogers was the chief financial officer of RLS, Maida signed several agreements to arbitrate disputes with RLS. But when RLS asked her to sign a new agreement in November 2001, she objected. The eight-page, single-spaced agreement contained numerous provisions related to term, compensation, non-competition, arbitration, and other subjects. Maida testified that RLS told her she would not be paid if she did not sign the agreement. RLS paid Maida a base salary every other Friday and a commission once each month by direct deposit to her account. On November 2 RLS made a $1,416.59 salary payment to her account, but it made no such payment on November 16, although it did make a direct deposit that day of $2,690.43 for her commission. Maida testified that she agonized over the weekend and signed the new agreement on Monday, November 19, specifically telling RLS she was under duress. At that time, RLS gave her a check for her salary. RLS contends that it prepared the check Friday but that Maida was not in the office that day to pick it up. Maida disputes that this happened. The parties agree the Federal Arbitration Act, 9 U.S.C. §§ 1-16, applies to the arbitration provision within the employment agreement. Maida argues that the arbitration provision is not enforceable because RLS improperly withheld her salary payment to force her to accept the arbitration provision. We take Maida’s version of the facts as true and assume, without deciding, that she has made out a case of economic duress. But there is no evidence the duress she claimed RLS exerted on her was directed at her agreeing to the arbitration provision as distinct from the agreement as a whole. Both an affidavit by Maida and her trial testimony provide some evidence that she objected to the arbitration provision specifically. She stated in her affidavit: I was . . . told . . . that there were, “no exceptions” to the “new” arbitration clause that I was made to sign and that “nothing was negotiable or up for discussion.” * * * After I refused to agree to this arbitration clause, I was told that my payroll checks would not be direct deposited into my account until I signed the agreement and . . . . “that a phone call to cancel my direct deposit would be made to the payroll department unless I signed my agreement”. I was told that “I just could not be paid unless I signed the arbitration agreement contained in the employment contract, that it was against company policy and that everyone had to do so.” So even though they held checks for money I had already earned and was entitled to, I was told that “I would not receive any more paychecks until I signed my agreement.” Despite these threats, I refused to sign the arbitration agreement based on the fact that it was given to me on such short notice and I needed an opportunity to read and review the agreement. She further stated that “by their wrongful conduct, [my superiors] forced me to sign even though I vehemently objected to the arbitration clause.” At trial, she testified that she feared [t]he arbitration clause was going to allow me not to be able to be in a position that I needed to be in now, and that is, to have someone represent me to help me where I feel like the company did me wrong, and that is, not pay me correctly, not pay me at all, and allow me to be in a position to have to quit so that I could not be making the kind of money that I once made. Neither her affidavit nor her trial testimony provide any evidence that the arbitration provision was the only provision to which she objected, or that it was the only provision she was under duress to sign. On the contrary, she testified at trial that she was also dissatisfied with the compensation and commission provisions and the non-compete provision of the new agreement, and had discussed these provisions and the arbitration provision with friends and family. She testified only that she objected to the new agreement and told RLS that she did not want to sign it. The court of appeals correctly concluded that “[t]he economic duress defense and Maida’s objection specifically related to the arbitration agreement itself” and that “[t]he evidence was sufficient to support a determination that RLS withheld Maida’s compensation for work already performed for the purpose of obtaining her agreement to arbitrate.” 156 S.W.3d at 165. But it also noted that Maida herself testified that she “also objected to other provisions in the contract.” Id. Maida does not contest this characterization of her testimony, and there is no evidence to show RLS was trying to force her agreement to the arbitration provision and not other provisions as well. Maida contends that the duress she claims she was under need not have related exclusively to the arbitration provision for her to be entitled to a judicial determination of her defense. But Maida’s argument, carried to its logical conclusion, would defeat the rule in FirstMerit in any case where the arbitration provision is only a clause in a larger agreement, since duress to force execution of an agreement containing an arbitration provision also forces consent to arbitration. Unless the arbitration provision alone was singled out from the other provisions, the claim of duress goes to the agreement generally and must be decided in arbitration. Accordingly, without hearing oral argument, Tex. R. App. P.52.8(c), we conditionally grant relators’ petition for writ of mandamus and direct the trial court to grant relators’ motion to compel arbitration. We are confident the court will comply promptly. Our writ will issue only if it does not. Opinion delivered: April 20, 2007

Childers v. Advanced Found. Repair, L.P., 193 S.W.3d 897 (Tex. 2006)

Childers v. Advanced Foundation Repair, No. 05-0831 (Tex. May 26, 2006)(finality, appealability, motion to compel arbitration) ══════════════════════════════════ On Petition for Review from the Court of Appeals for the Thirteenth District of Texas PER CURIAM OPINION The issue in this arbitration dispute is whether the appeal below was interlocutory or from a final order. The court of appeals deemed it interlocutory and held that the court therefore lacked jurisdiction. __S.W.3d ___, ___, No. 13-04-193-CV, 2005 Tex. App. LEXIS 6641, at *1 (Aug. 18, 2005). We disagree. Steve Childers contracted with Advanced Foundation Repair to level and stabilize a damaged foundation. Childers later brought suit against AFR asserting negligence, breach of contract, breach of implied warranty of good and workmanlike services, and Deceptive Trade Practices Act claims. The contract contained an arbitration agreement that provided: In the event that Owner and Company cannot agree that the movement in the foundation has been controlled and settlement is within the tolerances specified above, it is specifically agreed by acceptance of this warranty that the matter shall be determined by binding arbitration . . . . AFR moved to dismiss the case “in its entirety without prejudice due to the arbitration agreement on these matters.” In its Final Judgment, the trial court granted the motion to dismiss without prejudice and stated: All other claims in this case by all parties to this case are hereby dismissed without prejudice, such claims to be decided in arbitration pursuant to the arbitration provisions in the contract between these parties. This judgment is final, disposes of all parties and all claims in this case, is appealable, and disposes of this case in its entirety. The court of appeals erroneously determined Childers’s appeal to be interlocutory. In Lehmann v. Har-Con Corp., we held that a “judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final . . . .” 39 S.W.3d 191, 200 (Tex. 2001). Such is the case here. AFR requested that the trial court dismiss the case “in its entirety,” and the trial court did exactly that.[1] The trial court’s Final Judgment is unequivocal: “This judgment is final, disposes of all parties and all claims in this case, is appealable, and disposes of this case in the entirety.” Because the trial court’s order was all-encompassing and, as the record confirms, disposed finally and completely of all claims and parties, the court of appeals erred in deeming the appeal interlocutory and dismissing it for lack of jurisdiction.[2] We note that the federal approach is identical. See Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 86–87 (2000) (holding that an appeal may be taken of an order that compels arbitration and dismisses all claims before the court). Without hearing oral argument, we grant Childers’s petition for review, reverse the court of appeals’ judgment dismissing the case for lack of jurisdiction, and remand to the court of appeals to consider the merits of Childers’s appeal. See Tex. R. App. P. 59.1, 60.2(d). Opinion delivered: May 26, 2006 [1] Commendably, AFR, which sought and won complete dismissal in the trial court, concedes “[i]n the interest of intellectual honesty” that the court of appeals had jurisdiction. [2] Given the basis of today’s holding – that the trial court’s order was not interlocutory but final and appealable – we need not reach two attendant issues disputed by the parties: (1) whether Childers’s claims fall within the scope of the arbitration agreement; and (2) whether the agreement is governed by the Federal Arbitration Act or the Texas Arbitration Act.

In re Nexion Health at Humble, Inc., 173 S.W.3d 67 (Tex. 2005)

In re Nexion Health at Humble, Inc. d/b/a Humble Healthcare Center, No. 04-0360 (Tex. Oct. 14, 2005)(per curiam)(suppl. per curiam op. on motion for rehearing) SUPPLEMENTAL PER CURIAM ON MOTION FOR REHEARING OF CAUSE On rehearing, the real party raised for the first time that the Federal Arbitration Act is “reverse preempted” by the McCarran-Ferguson Act, citing for authority the Houston court of appeals decision in In re Kepka. See McCarran-Ferguson Act, 15 U.S.C. § 1012(b); Federal Arbitration Act, 9 U.S.C. § 1, et. seq.; see also In re Kepka, ___S.W.3d___ (Tex. App.—Houston [1st Dist.] 2005). Because this issue has not been reviewed by the courts below, we decline to reach the issue and express no opinion as to the merits of this argument. OPINION DELIVERED: October 14, 2005

In re AdvancePCS Health, L.P., 172 S.W.3d 603 (Tex. 2005)

Case style: In re Advance PCS Health L.P., AdvancePCS a/k/a AdvancePCS, Inc., PCS Health Systems, Inc., and AdvancePCS Health Systems, L.L.C., No. 04-0281 (Tex. April 15, 2005)(per curiam)(mandamus granted to compel arbitration) On Petition for Writ of Mandamus PER CURIAM OPINION Justice Johnson did not participate in the decision.

172 S.W.3d 603 (2005)

In re ADVANCEPCS HEALTH L.P., AdvancePCS a/k/a AdvancePCS, Inc., PCS Health Systems, Inc., and AdvancePCS Health Systems, L.L.C.

No. 04-0182.

Supreme Court of Texas.

April 15, 2005.

PER CURIAM.

We are once again called upon to decide the enforceability of an arbitration provision, this time in transactions between a pharmacy benefits management company and member pharmacies. The trial court denied the management company's motion to compel arbitration under the Federal Arbitration Act (FAA). See 9 U.S.C. §§ 1-16. The court of appeals summarily denied mandamus relief. Because the parties' contracts clearly require arbitration, we once again grant conditional mandamus relief.

AdvancePCS Health L.P. (PCS)^[1] processes and adjudicates claims for reimbursement between member pharmacies and customers' health care plans. In this case, the owners of several pharmacies^[2] filed suit in Hidalgo County on behalf of themselves and a putative class, asserting PCS had underpaid them for a decade.

PCS moved for arbitration under the FAA. A party attempting to compel arbitration must establish a valid arbitration agreement whose scope includes the claims asserted. In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex.1999) (per curiam); Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex.1996) (per curiam). As it is undisputed that the clause asserted here is broad enough to cover the pharmacies' claims, the question presented is its validity.

PCS submitted affidavits establishing that pharmacies joining its PCS network receive an enrollment package containing a Provider Agreement, enrollment instructions, an enrollment form, a service level worksheet, various network enrollment forms and addenda, and a provider manual. The Provider Agreement contains the following arbitration clause:

9.5 Arbitration: Any and all controversies in connection with or arising out of this Agreement will be exclusively settled by arbitration before a single arbitrator in accordance with the Rules of the American Arbitration Association. The arbitrator must follow the rule of law, and may only award remedies provided in this Agreement. The award of the arbitrator will be final and binding on the parties, and judgment upon such award may be entered in any court having jurisdiction thereof. Arbitration under this provision will be conducted in Scottsdale, Arizona, and Provider hereby 606*606 agrees to such jurisdiction, unless otherwise agreed to by the parties in writing or mandated by Law, and the expenses of the arbitration, including attorneys' fees, will be paid for by the party against whom the award of the arbitrator is rendered. This Section 9.5 and the parties' rights hereunder shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.

Under the FAA, an agreement to arbitrate is valid if it meets the requirements of the general contract law of the applicable state. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Here, the Provider Agreement contains a choice-of-law provision stating the agreement would be "construed, governed and enforced" according to Arizona law.^[3] But no party asked the trial court to take judicial notice of Arizona law.^[4] See TEX.R. EVID. 202. Indeed, all parties agree that Texas and Arizona law do not differ on any point material here. As there appears to be no conflict of laws, "there can be no harm in applying Texas law." Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 672 (Tex.2004); see In re J.D. Edwards World Solutions Co., 87 S.W.3d 546, 550 (Tex.2002) (per curiam).

Of the enrollment documents here, only the Provider Agreement contained an arbitration clause, and only the membership and network enrollment forms were signed by the pharmacies. But neither the FAA nor Texas law requires that arbitration clauses be signed, so long as they are written and agreed to by the parties. See 9 U.S.C. § 3; TEX. CIV. PRAC. & REM.CODE § 171.001(a); see also In re Halliburton Co., 80 S.W.3d 566, 569 (Tex.2002) (holding arbitration clause was accepted by continued employment).^[5]

Nor does an arbitration agreement have to be included in each of the contract documents it purports to cover. See, e.g., Halliburton, 80 S.W.3d at 569 (enforcing stand-alone dispute resolution program); In re FirstMerit Bank, N.A., 52 S.W.3d 749, 752-53, 755 (Tex.2001) (applying arbitration clause in loan agreement to entire mobile-home transaction); In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 482 (Tex.2001) (enforcing arbitration provision that was separate from retail installment contract). The pharmacies signed numerous enrollment forms over the years (as new providers were added to the PCS network), each of which explicitly referenced and agreed to the terms of the Provider Agreement. So long as the parties agreed to arbitrate this dispute, it does not matter which document included that agreement. Cf. DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 102 (Tex.1999) (requiring contracts pertaining to same transaction to be construed together).

Finally, the pharmacies' suit alleges that PCS miscalculated the negotiated discount 607*607 from the Average Wholesale Price figure (AWP), a term defined in the record only in the Provider Agreement. Indeed, all of the details of the parties' reimbursement arrangements are contained in that Agreement. As the pharmacies' suit is based on that Agreement, they cannot enforce all of it except the arbitration clause. Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 281, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995); FirstMerit, 52 S.W.3d at 756.

Once PCS established the existence of an arbitration clause governing this dispute, the burden shifted to the pharmacies to raise an affirmative defense to arbitration. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003); Oakwood, 987 S.W.2d at 573. They assert three.

First, the pharmacies assert other provisions in the Provider Agreement allow PCS to cancel the arbitration agreement at will, thus rendering its promise illusory and the agreement without consideration. See J.M. Davidson, 128 S.W.3d at 228. In the context of stand-alone arbitration agreements, binding promises are required on both sides as they are the only consideration rendered to create a contract. See, e.g., id.; Halliburton, 80 S.W.3d at 569. But when an arbitration clause is part of an underlying contract, the rest of the parties' agreement provides the consideration. See FirstMerit Bank, 52 S.W.3d at 757. Having used PCS's services and network to obtain reimbursements for 10 years, the pharmacies cannot claim their agreement to arbitrate was without consideration.

Moreover, the arbitration clause here is not illusory even if considered alone. The pharmacies' point to the following provisions as rendering the contract illusory:

• 1.3 Amendments. From time to time AdvancePCS may amend this Agreement. . . by giving notice to Provider of the terms of the amendment and specifying the date the amendment becomes effective, which shall not be less than thirty (30) days after the notice.

• 8.3 Immediate Termination Rights. If . . . Provider fails to perform or breaches any term or provisions of the AdvancePCS Documents, AdvancePCS may terminate this Agreement effective upon notice to Provider. This termination right is in addition to any and all other rights and remedies that may be available to AdvancePCS under this Agreement or at law or equity.

• 8.5 Provider Event of Default and AdvancePCS Remedy and Other AdvancePCS Rights. . . . Nothing in this Agreement shall limit, and the parties agree that in addition to the rights specified in this Section, AdvancePCS shall retain, any and all rights AdvancePCS may have at law, equity or under this Agreement.

But the first of these provides a 30-day window during which the arbitration clause cannot be cancelled. See Halliburton Co., 80 S.W.3d at 569-70 (holding arbitration clause not illusory when it provided for 10-day window). The last is inapplicable, as the general reservation of "all rights [PCS] may have at law" cannot be construed to render the express arbitration clause meaningless. Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex.2004). And the second does not render the clause illusory because of another provision the pharmacies overlook:

• 8.6 Survival of Certain Provisions. Notwithstanding the termination of this Agreement, . . . any obligations that arise prior to the termination of the Agreement shall survive such termination.

Had the pharmacies invoked arbitration rather than filing suit, PCS could not have 608*608 avoided arbitration by terminating the Provider Agreement.^[6] Thus, the clause was not illusory.

Second, the pharmacies contend the arbitration clause is substantively unconscionable because it lacked mutuality, and procedurally unconscionable because the pharmacies were forced to accept it. We rejected the first claim above, and have previously rejected the second. See Halliburton, 80 S.W.3d at 572 (holding arbitration provision not unconscionable simply because employer made "take it or leave it" offer to at-will employees).

Adhesion contracts are not automatically unconscionable, and there is nothing per se unconscionable about arbitration agreements. Oakwood, 987 S.W.2d at 574. Under the FAA, unequal bargaining power does not establish grounds for defeating an agreement to arbitrate absent a well-supported claim that the clause resulted from the sort of fraud or overwhelming economic power that would provide grounds for revocation of any contract. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90-91 (Tex.1996) (per curiam).^[7]

Third, the pharmacies contend the arbitration clause was disclosed only after they had joined PCS. Hector de la Rosa testified that PCS sent the Provider Agreement to him only after he had signed and returned the enrollment forms. When asked whether he read the Provider Agreement upon receipt, he answered "[a]bsolutely not."

But de la Rosa signed several of the enrollment forms seriatim; having received the Provider Agreement after the first, he was on notice of its terms for all the rest. Nor did anyone else testify that the Provider Agreement came only after they had joined, including several other employees and agents who often signed for de la Rosa's pharmacies. As neither affidavits nor testimony show that any pharmacy joined the PCS network without an opportunity to read the Provider Agreement, the pharmacies have not carried their evidentiary burden. See Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269 (Tex.1992).^[8]

Thus, the trial court abused its discretion in failing to compel arbitration. A party denied the right to arbitrate under the FAA is entitled to mandamus relief. In re Wood, 140 S.W.3d 367, 370 (Tex.2004) (per curiam).

Accordingly, without hearing oral argument, we conditionally grant the writ of mandamus and order the trial court to compel arbitration of the pharmacies' claims in accordance with the arbitration 609clause. TEX.R.APP. P. 52.8. The writ will issue only if the trial court fails to do so.

Justice JOHNSON did not participate in the decision.

[1] The defendant assumed various corporate identities during the ten-year period for which plaintiffs brought suit—including relators AdvancePCS Health L.P., AdvancePCS a/k/a AdvancePCS, Inc., PCS Health Systems, Inc., and AdvancePCS Health Systems, L.L.C. (all referred to herein as "PCS"). The relationship among these entities is immaterial here, as the Provider Agreement at issue remained substantially the same throughout.

[2] Named plaintiffs were Hector de la Rosa and de la Rosa Pharmacy, Inc., John Z. Cavazos and J.Z.C. Corporation, and Causey's Pharmacy, Inc. (collectively, the "pharmacies").

[3] Because the arbitration clause specifically provided for application of the FAA, this specific provision controls over the more general choice-of-law clause to the extent of any conflict. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133-34 (Tex.1994).

[4] The pharmacies' brief on appeal contains a number of helpful references to Arizona cases, but throughout asserts that Arizona and Texas law are the same.

[5] The Texas Arbitration Act requires signatures in two circumstances, neither of which applies here. See TEX. CIV. PRAC. & REM.CODE § 171.002 (making Act inapplicable to contracts of less than $50,000 or personal injury claims, unless signed by parties and their attorneys). Moreover, the FAA preempts state contractual requirements that apply only to arbitration clauses. Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 686-87, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996).

[6] For reasons that are unclear, the pharmacies also say mutuality is destroyed by provisions in the Provider Agreement reserving the right to obtain injunctive relief for violations of intellectual property rights, and for resolving conflicts between a PCS manual and its "On-Line Info." We find neither applicable.

[7] Whether the terms and conditions of this contract, taken as a whole, are unconscionable is a matter for the arbitrator. See FirstMerit, 52 S.W.3d at 756; Oakwood, 987 S.W.2d at 573 n. 3.

[8] Moreover, any pharmacy that continued to use the PCS network after an opportunity to read the Provider Agreement and object to its terms arguably accepted it. See Halliburton, 80 S.W.3d at 569(holding employee accepted arbitration policy by continuing employment after receiving notice of it); EZ Pawn, 934 S.W.2d at 90 (noting party given opportunity to read arbitration agreement is presumed to know its contents).