NONSIGNATORIES: Wrongful Death Plaintiffs Compelled to Arbitrate by Texas Supreme Court

Following its recent decision in In re Labatt Food Service, L.P., 279 S.W.3d 640 (Tex. 2009), the Texas Supreme Court today issued a per curiam opinion requiring the survivors of another worker killed on the job to arbitrate - rather than litigate - their wrongful death claims based on the worker's agreement to arbitrate personal injury and death claims against the employer, a nonsubscriber under the Texas Workers Compensation Act. The Court re-iterated that the Plaintiffs were bound by the agreement as nonsignatories because their claims were entirely derivative of the claims of the dead employee. The Court further rejected the contention that the Arbitration Agreement attached to the company's Employee Injury Benefits Plan was unenforceable because it constituted an illegal pre-injury/death waiver, reasoning that the duty to arbitrate, rather than litigate, merely took the resolution of the claims to a different forum, rather than altering their availability or viability substantively. As such, it did not amount to an illegal waiver. In Re Golden Peanut Co.,LLC, (Tex. 2009) No. 09-0122 (Tex. Nov. 20, 2009)(per curiam)(mandamus compelling arbitration granted) (arbitration and nonsignatories, wrongful death plaintiffs bound by arb agreement signed by worker killed on the job as derivative claimants and must arbitrate claim against employer, pre-injury waivers, forum selection vs. waiver of substantive rights) IN RE GOLDEN PEANUT COMPANY, LLC; from Gaines County; 11th district (11 08 00215 CV, 269 SW3d 302, 11 13 08) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. EXCERPTS FROM THE OPINION Texas Labor Code section 406.033(e), which prohibits pre-injury waivers of personal injury or death claims, does not invalidate the decedent’s arbitration agreement. Golden Peanut petitioned the court of appeals for mandamus relief. The court held that the Mutual Agreement to Arbitrate was valid, was supported by consideration, and did not violate Texas Labor Code section 406.033(e), which prohibits pre-injury waivers of personal injury or wrongful death claims. 269 S.W.3d 302, 307– 09. However, without the benefit of our holding in In re Labatt Food Service, L.P., the court of appeals held that the trial court did not abuse its discretion in refusing to compel arbitration because the Drennans, as nonsignatories, were not bound by the agreement to arbitrate. Id. In Labatt, we held that a decedent's pre-death arbitration agreement binds his or her wrongful death beneficiaries because, under Texas law, the wrongful death cause of action is entirely derivative of the decedent’s rights. Id. at 646. The Drennans contend the arbitration agreement is nevertheless unenforceable because it violates section 406.033(e) of the Texas Labor Code, which provides [a] cause of action [against a nonsubscriber] may not be waived by an employee before the employee’s injury or death. Any agreement by an employee to waive a cause of action or any right described in Subsection (a) before the employee’s injury or death is void and unenforceable. Tex. Lab. Code §406.033(e). Subsection (a), in turn, limits the common law defenses available to an employer who does not carry workers’ compensation insurance. Id. § 406.033(a). However, an agreement to arbitrate 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. See, e.g., Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974) (holding that arbitration clauses are, “in effect, a specialized kind of forum-selection clause”). See also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985) (stating that, “[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum”). Accordingly, section 406.033(e) does not render the arbitration agreement void. [the hyperlinks are not part of the opinion as issued by the court]

Ratification by Acceptance of Benefits Held to Bar Challenge to Enforceability of Post-Injury Agreement to Arbitrate

POST-INJURY WAIVER OF RIGHT TO LITIGATE IN FAVOR OF RESOLUTION BY ARBITRATION ENFORCED BY MANDAMUS. Argument that post-injury arbitration agreement was unenforceable as invalid precluded by worker's acceptance and retention of benefits in the form of continuing payment of wages by employer. In Re Weeks Marine, Inc. (Tex.App.- Houston [14th Dist.] Oct. 8, 2009) MEMORANDUM OPINION OF THE 14TH COURT OF APPEALS On July 1, 2009, relator Weeks Marine, Inc., filed a petition for writ of mandamus in this Court. See Tex. Gov’t Code Ann. §22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, Weeks Marine requests that we compel the respondent, the Honorable Steven Kirkland, presiding judge of the 215th District Court of Harris, to vacate his March 30, 2009 order denying its motion to abate and stay the proceedings and compel arbitration. We conditionally grant the petition. Background On April 29, 2006, Jose Jimenez was injured while working on a dredging vessel for his employer, Weeks Marine. On May 8, 2006, several days after Jimenez had surgery for his injuries, Weeks Marine sent him a Claims Arbitration Agreement (the “Agreement”) in which he agreed to arbitrate any claims arising from his injury in exchange for Weeks Marine’s agreement to pay him advanced wages, which would be applied toward any recovery Jimenez might have against Weeks Marine.[1] Jimenez signed the Agreement the next day. On June 29, 2006, Jimenez filed the underlying lawsuit against Weeks Marine alleging that his injuries were caused by Weeks Marine’s negligence and the unseaworthiness of the vessel. Weeks Marine formally requested that Jimenez submit his claims to arbitration pursuant to the Agreement. When Jimenez refused to do so, Weeks Marine moved to compel arbitration. The trial court denied Weeks Marine’s motion to compel arbitration. Weeks Marine then sought mandamus relief in this court. See In re Weeks Marine, Inc., 242 S.W.3d 849 (Tex. App.—Houston [14th Dist.] 2007, orig. proceeding [mand. denied]). We rejected Jimenez’s arguments that (1) the Agreement is not subject to the Federal Arbitration Act (“FAA”)[2] because post-injury agreements between a seaman and his employer are invalid under Section 5 of the Federal Employers’ Liability Act; (2) the Agreement does not meet the standards applied in Garret v. Moore-McCormack Co., 317 U.S. 239 (1942), to agreements that diminish a seaman’s substantive right; (3) and the Agreement is substantively unconscionable. Id. at 857–60. With respect to Jimenez’s defense of procedural unconscionability, we concluded that the trial court was required to hold an evidentiary hearing because the parties had submitted conflicting affidavits. Id. at 862–63 (citing Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992) (orig. proceeding)). We granted the petition in part, but did not direct the trial court to enter an order compelling arbitration while disputed fact issues remained regarding procedural unconscionability. Id. at 863. Weeks Marine filed a petition for writ of mandamus in the Texas Supreme Court, which was denied on October 10, 2008. On January 27, 2009, Weeks Marine filed its first amended motion to compel arbitration and motion for an evidentiary hearing. On March 13, 2009, the trial court conducted an evidentiary hearing and, on March 30, 2009, denied Weeks Marine’s first amended motion to compel arbitration. Jimenez and Weeks Marine each filed proposed findings of fact and conclusions of law. On May 20, 2009, the trial court signed its findings of fact and conclusions of law, concluding that the Agreement is invalid because it is procedurally unconscionable and Weeks Marine procured it by use of duress. On May 27, 2009, Weeks Marine filed an amended request for additional findings of fact and conclusions of law, which the trial court denied. Standard of Review In the prior mandamus proceeding, this court determined that the arbitration agreement is subject to the FAA. See In re Weeks Marine, 242 S.W.3d at 853. Mandamus is the appropriate vehicle to seek relief from a trial court order denying a motion to compel arbitration under the FAA. In re Bank One, N.A., 216 S.W.3d 825, 826 (Tex. 2007) (orig. proceeding) (per curiam).[3] To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court clearly abused its discretion and it has no adequate remedy by appeal. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). [...] The party seeking to compel arbitration under the FAA must establish that (1) a valid arbitration agreement exists, and (2) the claims at issue fall within the scope of the agreement. In re Dillard Dep't Stores, Inc., 186 S.W.3d 514, 515 (Tex. 2006) (orig. proceeding) (per curiam). Jimenez does not dispute that he signed the Agreement or that his claims are subject to the Agreement, but, instead, challenges its validity. An agreement to arbitrate is valid under the FAA if its meets the requirements of the general contract law of the appropriate state. In re Poly-Am., L.P., 262 S.W.3d 337, 347 (Tex. 2008) (orig. proceeding). In determining the validity of an agreement to arbitrate under the FAA, courts must first apply state law governing contract formation. Id. As with any other contract, agreements to arbitrate are valid unless grounds exist at law or in equity for revocation of the agreement. Id. at 348. Whether a valid arbitration agreement exists is a legal question subject to de novo review. In re D. Wilson Constr. Co., 196 S.W.3d at 781. Because the law favors arbitration, the burden of proving a defense to arbitration is on the party opposing arbitration. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001 (orig. proceeding). Ratification Weeks Marine asserts Jimenez ratified the Agreement and, therefore, any defenses to the creation of the Agreement are irrelevant.[4] In light of the trial court’s finding that the Agreement is procedurally unconscionable, Jimenez argues that Weeks Marine must establish he later developed an intent to contract. Ratification is the adoption or confirmation by a person, with knowledge of all material facts, of a prior act which did not legally bind that person and which that person had the right to repudiate. Facciolla v. Linbeck Constr. Corp., 968 S.W.2d 435, 440 (Tex. App.—Texarkana 1998, no pet.); Enserch Corp. v. Rebich, 925 S.W.2d 75, 84 (Tex. App.—Tyler 1996, writ dism’d). Ratification may be express or implied from a course of conduct. Isaacs v. Bishop, 249 S.W.3d 100, 110 n.9 (Tex. App.—Texarkana 2008, pet. denied); Zieben v. Platt, 786 S.W.2d 797, 802 (Tex. App.—Houston [14th Dist.] 1990, no writ). Any act inconsistent with an intent to avoid a contract has the effect of ratifying the contract. Isaacs, 249 S.W.3d at 110 n.9.Once a party ratifies a contract, it may not later withdraw its ratification and seek to avoid the contract. Mo. Pac. R.R. Co. v. Lely Dev. Corp., 86 S.W.3d 787, 792 (Tex. App.—Austin 2002, pet. dism’d). The relevant inquiry focuses on the actions - taken by the party seeking to avoid the contract once that party became fully aware of the subject prior act which did not legally bind the party. Harris v. Archer, 134 S.W.3d 411, 427 (Tex. App.—Amarillo 2004, pet. denied). A party cannot avoid an agreement by claiming there was no intent to ratify after that party has accepted the benefits of the agreement. See Oram v. Gen. Am. Oil Co. of Tex., 513 S.W.2d 533, 534 (Tex. 1974) (per curiam) (“Whatever her mental reservations have been, her acceptance of the payments are inconsistent with the intention to avoid the lease. . . . The effect is to waive or abandon any right of rescission or of attack upon the initial invalidity, if any, of the lease."). Whether a party has ratified a contract may be determined as a matter of law if the evidence is not controverted or is incontrovertible. Mo. Pac. R.R. Co., 86 S.W.3d at 792. Although some cases have stated ratification must be “intentional,” that intent may be inferred from the acceptance of benefits under the agreement after having full knowledge of the act that would make the agreement voidable. Williams v. City of Midland, 932 S.W.2d 679, 685 (Tex. App.—El Paso 1996, no pet.) (stating that intentional ratification may be shown by party’s acceptance of benefits under agreement, after becoming fully aware of fraud); Motel Enters., Inc. v. Nobani, 784 S.W.2d 545, 547 (Tex. App.—Houston [1st Dist.] 1990, no writ) (op. on reh’g) (stating that intent to give validity to former transaction may be inferred from existing facts and circumstances such as retaining benefits of invalid contract with full knowledge of facts that make contract invalid). The “intention” of giving validity to an earlier act is susceptible to misinterpretation and misapplication—as is shown by Jimenez’s position. Old Republic Ins. Co. v. Fuller, 919 S.W.2d 726, 728 n.1 (Tex. App.—Texarkana 1996, writ denied). “A party’s intent is indeed important in determining the question of ratification, but not because the party must possess intent to ratify. Rather, the party must perform a voluntary, intentional act which is inconsistent with an intention of avoiding the prior agreement.” Id. Therefore, Weeks Marine is required to demonstrate only that Jimenez performed an intentional act that was inconsistent with any intention to avoid the Agreement. Weeks Marine contends that Jimenez ratified the Agreement by accepting the benefits of the Agreement, i.e., the payment of the advanced wages. The trial court found that relator had received approximately $20,000 from Weeks Marine under the Agreement. Jimenez signed the Agreement on May 9, 2006, and started receiving the wage payments soon thereafter. While still receiving payments, Jimenez hired an attorney and, on June 29, 2006, filed the underlying lawsuit against Weeks Marine. On September 21, 2006, Weeks Marine requested that Jimenez submit his claims to arbitration pursuant to the Agreement, but, on September 25, he refused to do so. On October 3, 2006, Weeks Marine filed its motion to compel arbitration. It is not disputed that Jimenez continued to receive and accept advanced wage payments until they were exhausted on October 28, 2006, under the terms of the Agreement, or that he did not return any of those payments, even after he had hired an attorney and after Weeks Marine had formally requested arbitration. Even if the Agreement were unenforceable due to procedural unconscionability or duress, Jimenez ratified it by accepting and retaining the benefits of the Agreement. See In re Border Steel, Inc., 229 S.W.3d 825, 835 (Tex. App.—El Paso 2007, orig. proceeding [mand. denied]) (“[A]ssuming for a moment that the Agreement [to arbitrate] were unenforceable, Juarez ratified it by accepting and retaining benefits under the Plan following his injury.”); In re Leadership Ford, Inc., No. 05-99-00618-CV, 1999 WL 424303, at *4 (Tex. App.—Dallas June 25, 1999, orig. proceeding) (not designated for publication) (holding employee ratified his agreement to be bound by plan and its arbitration requirements when he accepted plan’s benefits after his injury and did not return such benefits after he knew his employer intended to enforce plan’s arbitration requirements).[5] Having accepted the advanced wage payments after becoming aware that the Agreement is allegedly invalid due to procedural unconscionability or duress, Jimenez cannot now avoid the Agreement on those grounds. See Harris, 134 S.W.3d at 427 (stating that party, who has been fraudulently induced to enter into voidable agreement engages in conduct that recognizes agreement as binding after it has become aware of fraud, ratifies agreement and waives any right to assert fraud as basis to avoid agreement). Jimenez further contends that Weeks Marine must also show that the circumstances surrounding the later contract formation were not unconscionable. Jimenez’s attorney filed the underlying lawsuit against Weeks Marine on Jimenez’s behalf less than two months after Jimenez signed the Agreement. Because Jimenez continued to accept wage payments after he was represented by an attorney, it cannot be said that the circumstances surrounding the subsequent ratification of the Agreement were unconscionable. We sustain this issue. Conclusion We hold that the trial court abused its discretion in denying Weeks Marine’s motion to compel arbitration.[6] Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial court to vacate its March 30, 2009 order and compel arbitration of Jimenez’s claims. The writ will issue only if the trial court fails to act in accordance with this opinion.We lift the stay issued on July 2, 2009. /s/ John S. Anderson CASE DETAILS AND LINKS: In Re Weeks Marine, Inc. (Tex.App.- Houston [14th Dist.] Oct. 8, 2009)(Anderson)(ratification of agreement to arbitrate by acceptance of benefits; post-injury waiver of right to litigate) (arbitration compelled by mandamus) Decision: MOTION OR WRIT GRANTED: Opinion by Justice Anderson Panel composition: Before Justices Anderson, Guzman and Boyce Appellate cause no: 14-09-00580-CV Case style: In Re: Weeks Marine, Inc . Appeal from 215th District Court of Harris County Trial Court Judge: Steven Kirkland Also see prior blog post on 2007 mandamus case referenced in the opinion: In Re Weeks Marine, Inc. (Tex.App.- Houston [14th Dist.] Dec. 19, 2007)(Seymore) (arbitration mandamus)

Is the Validity of an Arbitration Agreement Affected by Corporate Reorganization and Name Change?

DOES CORPORATE REORGANIZATION (change of corporate name and charter) RENDER EXISTING ARBITRATION AGREEMENTS WITH EMPLOYEES UNENFORCEABLE UNLESS RENEWED? The Eight Court of Appeals of Texas in El Paso recently examined the proposition as a matter of first impression and concluded that an existing arbitration agreement governing claims of injury in the workplace was not affected by the employer's name & charter change as the changes merely involved "rebranding" rather than termination of a corporation and creation of a new one. Therefore, it was not necessary for a new arbitration agreement to be entered between the employee and the successor corporation, which also retained the same filing number with the Texas Secretary of State. From the Opinion: In the present case the Real Party makes the novel argument that because NCED is now ReadyOne and because ReadyOne (formerly NCED) has amended and restated its certificate of formation, the Agreement in not enforceable. The crux of this argument is that when a business entity substantially changes its character, and the changes fall short of ending or making a new corporate existence, prior obligations with contracting parties are void or nullified, because the new party was not a signatory to prior obligations. For this to be true, it must be shown that ReadyOne is not merely rebranded but is a new entity under Texas law. Texas has already tackled the impact of a name change on an arbitration agreement. The H&R Block court found "[u]nder ordinary legal principles, a contracting party that has merely changed its name is still a contracting party." In re H & R Block Financial Advisors, Inc., 235 S.W.3d 177, 178 (Tex. 2007) (citing, e.g., Coulson v. Lake LBJ Mun. Util. Dist., 781 S.W.2d 594, 595 (Tex. 1989); Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628, 630 (1941)). "Accordingly, the company's change of name does not prevent it from invoking its own arbitration agreements." Id.; see also 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). It is clear that in Texas a corporate name change does not affect the contractual obligations of parties existing prior to the name change, so a business entity with a new name may invoke an arbitration agreement that was signed by the same company prior to the name change. No clear authority exists on what impact a restated corporate purpose or other amendments to the certificate of formation has on contractual obligations in existence at the time of the changes. In Contec the Second Circuit Court of Appeals found that even when there had been corporate name and form changes, the surviving entity should be permitted to enforce the agreement. Contec Corp., 398 F.3d at 210. The rationale of H&R Block and Contec thus suggests that name changes do not eliminate contractual obligation in place before these changes. NCED restated and made amendments to its certificate of formation. Amendments and restatements do not create a new entity. When the term amendment and restate are given their plain meanings, the terms do not mean to "create a new." This is evidenced by two items in the Secretary of State's communications with ReadyOne and NCED. First, the Secretary of State now refers to ReadyOne as formerly: NATIONAL CENTER FOR EMPLOYMENT OF THE DISABLED. Second, in ReadyOne's certificate of filing, the filing number is 112382901; identical to NCED's certificate of filing. By referring to ReadyOne as formerly NCED and by keeping the file numbers the same, the Secretary of State is putting the public on notice that the two entities are the same under Texas law. The Texas Business Organizations Code (BOC) also supports the finding that ReadyOne is merely a rebranded NCED. First, under the BOC a corporation has a perpetual existence unless otherwise stated in the certificate of formation. Tex.Bus.Org.Code Ann. § 3.005(a)(4) (Vernon Supp. 2008). Changing a corporate name or form does not end this perpetual existence. Specifically, to terminate a corporate existence, the business entity must conduct a windup. Tex.Bus.Org.Code Ann. § 11.052. During this windup the entity must discharge its property to satisfy its obligations. Id. Most importantly, after the windup is complete, the entity must file a certificate of termination. Tex.Bus.Org.Code Ann. § 11.101. So, the corporate entity does not cease to exist until the termination is filed. Tex.Bus.Org.Code Ann. § 11.102. Based on the evidence before this Court, NCED still exists, but now it has a new operating name and restated purpose. Neither the Real Party nor Relators were able to find law indicating that a series of amendments or restaments of corporate purpose makes an entity a new company and thus relieving underlying contractual obligations. A corporation in Texas is permitted to freely restate or amend its certificate of formation. Tex.Bus.Org.Code Ann. §§ 3.056, 3.057. Absent in the Texas BOC is a provision which supports the Real Party's argument. Because no law supports the Real Party's argument that ReadyOne is nothing more than a rebranded NCED, and because NCED is still in existence in the eyes of Texas, this Court finds that the arbitration can be invoked by ReadyOne (formerly NCED). In Re ReadyOne, No. 08-08-00221-CV (Tex.App.- El Paso, Aug. 19, 2009) (mandamus compelling arbitration granted, arbitration of workplace injury claim, no waiver of right to arbitrate) Disposition of Petition for Writ of Mandamus: GRANTED Opinion by Chief Justice David Wellington Chew Other judges participating in deciding case: Justice McClure, The Honorable Gomez Appellate cause no and link to docket: 08-08-00221-CV Case style in the Court of Appeals: In Re: ReadyOne Industries, Inc. and Amalia Lopez From the Recitation of Facts in the Opinion: On February 23, 2005, Torres signed an arbitration agreement (Agreement) with her employer, the National Center for Employment of the Disabled (NCED). This Agreement requires that both Torres and her employer arbitrate "[a]ny injury suffered by Claimant while in the Course and Scope of Claimant's employment with Company, including but not limited to, claims for negligence, gross negligence, and all claims for personal injuries . . . ." In NCED's Restated Certificate of Formation with New Amendments, it simultaneously adopted the Texas Business Organizations Code and changed its name to ReadyOne Industries, Inc. (formerly National Center for Employment of the Disabled). Along with this name change, ReadyOne Industries, Inc. (ReadyOne) also amended Articles 1-7 and added Articles 8-9 to its certificate of formation. Specifically, the following changes were made: (i) change the filing entity's name; (ii) update the registered agent and office; (iii) update the provisions regarding the board of directors; (iv) provide that the filing entity has no members; (v) restate the filing entity's purposes; (vi) restate the method of asset distribution upon the dissolution of the filing entity; (vii) restate the prohibitions on certain activities; (viii) provide for limitation of the liability of the directors and officers of the filing entity under certain circumstances; (ix) eliminate the express period of duration of the filing entity; and (x) eliminate the name and address of the organizer.

In re Jindal Saw Limited (Tex.App.- Houston 2008)

In re Jindal Saw Limited No. 01-07-01068-CV (Tex.App.- Houston [1st Dist.] May 22, 2008) (Alcala) (workplace safety, occupational injury, worker's comp, nonsubscriber, arbitration, wrongful death, survival action) Opinion by Justice Else Alcala Panel Composition: Justices Tim Taft, Evelyn Keyes, and Elsa Alcala Full style of this case: In re Jindal Saw Limited, Jindal Enterprises LLC, and Saw Pipes USA Appeal from Probate Court No 1 of Harris County Trial Court Judge: Hon. Russell Austin Disposition: Grant Petition for Writ of Mandamus Attorneys: Levi G McCathern II, Jeffrey Christopher Wright Attorney Kurt B. Arnold, Marvin B. Peterson, Micajah Daniel Boatright By petition for writ of mandamus, relators, Jindal Saw Limited, Jindal Enterprises LLC, and Saw Pipes USA, Inc. (collectively, “Saw Pipes”), challenge the trial court’s October 11, 2007 order denying Saw Pipes’ motion to compel arbitration.[1] In two issues, Saw Pipes contends that the trial court abused its discretion by denying its motion to compel arbitration of the survival action and wrongful-death claims because an enforceable arbitration agreement exists and the claims fall within the scope of the arbitration agreement. We conclude that the non-signatories to the arbitration agreement are bound to arbitrate the survival action claims because the signatory agreed to arbitrate his claims against Saw Pipes. We also conclude, however, that the non-signatories’ wrongful-death claims are not bound by the arbitration agreement because those claims are personal to the non-signatories and they did not agree to arbitrate the claims. We grant the petition for writ of mandamus for the survival action and deny the petition for writ of mandamus for the wrongful-death claims. * * * Conclusion By denying the motion to compel arbitration in the October 11, 2007 order, the trial court abused its discretion with regard to the survival claim and did not abuse its discretion with regard to the wrongful-death claims. Accordingly, we grant the petition for writ of mandamus for Yvonne’s survival claim and deny the petition for writ of mandamus for the wrongful-death claims of Yvonne and the children. We lift the stay that we issued when the petition was filed. We are confident that the trial court will act promptly in accord with this opinion, and our writ will issue only if it does not. Elsa Alcala Justice

In re Pisces Foods, 228 S.W.3d 349 (Tex.App.- Austin May 2007)

In re Pisces Foods, L.L.C. d/b/a Wendy's Restaurants and/or d/b/a Wendy's Old Fashioned Hamburgers Restaurant, No. (Tex.App.- Austin, May 24, 2007)(Opinion by Justice Waldrop)(mediation as prerequisite to arbitration) Appeal from County Court at Law No. 1 of Travis County Disposition: Arbitration mandmamus denied As presented in this petition, there is no question of fact with respect to the mediation prerequisite. The agreement expressly requires mediation as a precondition for requesting arbitration. The agreement binds relator. There is no allegation or proof that either party requested mediation, that they held a mediation, or that Jimenez resisted participating in mediation. Relator has failed to comply with the terms of its contract with Jimenez setting up preconditions for arbitration. Under either the Warehouseman or the HIM/Kemiron theories, the arbitration clause has not been triggered. See Warehousemen, 331 F.3d at 488; HIM, 317 F.3d at 44; Kemiron, 290 F.3d at 1291. We do not express any opinion regarding whether relator has waived the right to arbitrate upon satisfaction of the preconditions, only that the right to compel arbitration has not yet accrued under the terms of the contract. Nor do we express any opinion regarding whether this lawsuit should continue in the trial court despite the fact that an alternative dispute resolution and arbitration agreement exists (whether enforceable or not), but Jimenez has not complied with it and the relator has not properly invoked it. On the undisputed record presented here, the trial court did not abuse its discretion by refusing to compel arbitration. ORIGINAL PROCEEDING FROM TRAVIS COUNTY O P I N I O N Relator Pisces Foods, L.L.C., d/b/a Wendy's Restaurants and/or Wendy's Old Fashioned Hamburgers Restaurant Number 17, seeks a writ of mandamus ordering the trial court to compel arbitration of a personal injury claim brought by a former employee. We find no abuse of discretion in the denial of the motion to compel and deny the petition. Carmen Jimenez worked at relator's restaurant. She alleges that she was injured when a drawer at the restaurant fell on her while she was working. She sued relator on theories of negligence and premises liability. Relator filed a motion to abate and refer the case to arbitration. At the hearing on the motion, the trial court excluded evidence of the arbitration agreement (1) and declined to either abate the case or refer it to arbitration. Relator then filed this petition for writ of mandamus. We review the refusal to compel arbitration under the Federal Arbitration Act by writ of mandamus using an abuse of discretion standard. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272-73 (Tex.1992). A trial court abuses its discretion if it erroneously applies the law to the facts, or if it errs in determining the law. In re Bruce Terminix Co., 988 S.W.2d 702, 703 (Tex. 1998) (orig. proceeding). A party seeking arbitration must establish its right to arbitration under a contract. Weekley Homes, Inc. v. Jennings, 936 S.W.2d 16, 18 (Tex. App.--San Antonio 1996, writ denied) (Weekley I). Under the Federal Arbitration Act, "upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement." 9 U.S.C.A. § 4 (1999); see Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996) (once party seeking to compel arbitration establishes that agreement exists under the FAA and that claims are within agreement's scope, trial court must compel arbitration and stay its proceedings). Relator has a dispute resolution program that seeks to resolve employee complaints and avoid litigation of such complaints. (2) The Speak Out Program Highlights pamphlet attached to Phil Stanton's affidavit outlines a four-step program. The steps are: (1) talking about problems one-on-one with a store manager, (2) formal review by the corporate human resources department, (3) mediation, and (4) final and binding arbitration. The Highlights pamphlet expressly states, "Each Step must be followed in sequence so that we have every opportunity to work together toward an agreeable resolution of the issue." The sequential nature of the program is emphasized in the arbitration paragraph, which begins as follows: "If you have a work-related problem that involves a legally protected right that could not be settled through Steps 1, 2 or 3 of the Program, you may request arbitration." The Highlights pamphlet also states that the program is "a mandatory condition of your employment, which you accept and agree to by becoming employed or continuing your employment with the Company at any time on or after March 1, 2002. The Company is also mutually bound to use this program for any covered claim." Even if we consider the excluded affidavit and assume without deciding that Jimenez agreed to the program and that her claims are within the agreement, relator has not shown itself entitled to arbitration. According to relator's own literature, mediation must occur and fail before arbitration is an option under the company's mandatory program. Relator concedes that no mediation occurred. Accordingly, relator failed to prove itself entitled to arbitration. Relator argues that the failure to request mediation did not waive its right to arbitration, citing In re Weekley Homes, 985 S.W.2d 111, 114 (Tex. App.--San Antonio 1998, orig. proceeding) (Weekley II). The parties in the Weekley cases had an agreement that permitted the parties to request arbitration only after participating in mediation. The trial court denied a motion to compel arbitration because the parties had not mediated. Weekley I, 936 S.W.2d at 17. The court of appeals affirmed, finding that mediation was a necessary precondition to arbitration under the terms of the parties' contract. Id. at 18-19. The parties then went to mediation, which failed. Weekley II, 985 S.W.2d at 113. When the relator again sought to compel arbitration, the trial court denied the motion after concluding that the relator had waived the right to arbitrate by filing its first motion to compel arbitration before mediating the case. Id. The court of appeals found that denial to be an abuse of discretion because the arbitration agreement did not expressly provide that requesting arbitration before mediation waived any right a party had to arbitrate, and nothing about the relator's behavior indicated that it intended to waive its right to arbitrate. Id. at 114. The San Antonio court also wrote that the question of whether a party has followed the procedures necessary to invoke an arbitration clause is ordinarily left to the arbitrator. Id. (citing John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557 (1964)). This latter reasoning bears closer scrutiny with respect to the particular facts of this case. The Supreme Court in John Wiley distinguished between concepts of substantive arbitrability and procedural arbitrability, but noted that cases would rarely present issues that were plainly one or the other. 376 U.S. at 556-57. The court defined substantive issues as those relating to whether the subject matter of the dispute was within an arbitration agreement and procedural issues as those relating to whether the procedures for invoking and using arbitration were met. Id. at 557. Generally, substantive issues are to be decided by courts and procedural issues are to be submitted as part of the arbitration. Id. at 557-58. The John Wiley court held that the issues concerning fulfillment of arbitration prerequisites blended substance and procedure and should be resolved by the arbitrator. Id. at 557. In that case, the union argued that Wiley's consistent refusal to recognize the union's representative status made following the grievance steps under the contract utterly futile and a bit ridiculous. The union also argued that time limits in the grievance procedure were not dispositive because the violations of the bargaining agreement were continuing. These arguments were inseparable from the disputes underlying the validity of the agreement. Id. Courts nevertheless have held that issues related to the meeting of conditions precedent to arbitration--including time limits, notice, and laches--are procedural arbitrability issues. See Howsam v. Dean Witter Reynolds, 537 U.S. 79, 84-86 (2002). In concluding that a National Association of Securities Dealers arbitrator should determine whether the parties had met NASD requirements for requesting arbitration, the Supreme Court deemed such issues as "presumptively for the arbitrator, not for the judge." Id. at 85. The Tyler court of appeals held that a trial court abused its discretion by failing to compel arbitration despite an allegation that the party requesting arbitration failed to satisfy the precondition that it participate in mediation. In re R & R Personnel Specialists of Tyler, Inc., 146 S.W.3d 699, 704 (Tex. App.--Tyler 2004, orig. proceeding). The court held that compliance with a mediation precondition was a procedural arbitrability issue that should be resolved by an arbitrator. Id. Some courts have noted an exception to this bright-line distinction. In John Wiley, the Supreme Court wrote that doubts about whether preconditions have been met "cannot ordinarily be answered without consideration of the merits of the dispute which is presented for arbitration." 376 U.S. at 557 (emphasis added). The Court wrote: Once it is determined, as we have, that the parties are obligated to submit the subject matter of a dispute to arbitration, "procedural" questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator. Even under a contrary rule, a court could deny arbitration only if it could confidently be said not only that a claim was strictly "procedural," and therefore within the purview of the court, but also that it should operate to bar arbitration altogether, and not merely limit or qualify an arbitral award. Id. The Fifth Circuit derived from this language a narrow exception to the general rule that arbitrators decide questions of procedural arbitrability, applicable when those issues are essentially undisputed factually. General Warehousemen & Helpers Union Local 767 v. Albertson's Distribution, Inc., 331 F.3d 485, 488 (5th Cir. 2003). The Fifth Circuit wrote: We have interpreted this rare exception to mean that "a court will not order arbitration if 'no rational mind' could question that the parties intended for a procedural provision to preclude arbitration and that the breach of the procedural requirement was clear." [Oil, Chem. & Atomic Worker's Int'l Union, Local 4-447 v. Chevron Chem. Co., 815 F.2d 338, 342 (5th Cir. 1987)] (quoting Rochester Tel. Corp. v. Communication Workers of Am., 340 F.2d 237, 239 (2d Cir. 1965)). Warehousemen, 331 F.3d at 488. The Dallas court of appeals similarly noted the possibility of an exception. Discussing procedural arbitrability, that court wrote: "Such procedural questions include whether any contractually-based prerequisites to arbitration have been satisfied, at least when such issues are intertwined with the underlying facts of the dispute." American Realty Trust, Inc. v. JDN Real Estate-McKinney, L.P., 74 S.W.3d 527, 531 (Tex. App.--Dallas 2002, pet. denied) (citing Del E. Webb Constr. v. Richardson Hosp. Auth., 823 F.2d 145, 149 (5th Cir.1987)). These courts did not use the exception because each of them faced disputed facts concerning the procedural arbitrability issues. See John Wiley, 376 U.S. at 557-58; Warehousemen, 331 F.3d at 488-490; American Realty, 74 S.W.3d at 532; see also Weekley II, 985 S.W.2d at 114. Other courts have upheld decisions that arbitration could not be compelled when parties who were contractually required to mediate or follow other grievance procedures as a precondition to arbitration had failed to do so. HIM Portland, LLC v. Devito Builders, Inc., 317 F.3d 41, 44 (1st Cir. 2003); Kemiron Atl., Inc. v. Aguakem Int'l, Inc., 290 F.3d 1287, 1290-91 (11th Cir. 2002); Allen v. Apollo Group, Inc., No. Civ. A. H-04-3041, 2004 U.S. Dist. LEXIS 26750, at *27 (S.D. Tex. Nov. 9, 2004). But see Guam v. Pacificare Health Ins. Co. of Micronesia, Inc., 2004 Guam 17, 2004 Guam LEXIS, 18 at *40 n.7 (Guam 2004) (distinguishing HIM because it "did not address the issue of whether the court or the arbitrators should decide whether a condition precedent to arbitration was satisfied"). These courts reasoned that because the parties contractually agreed to mediate before arbitrating, compelling arbitration in the absence of mediation would thwart the parties' original intention. As the Eleventh Circuit wrote: The FAA's policy in favor of arbitration does not operate without regard to the wishes of the contracting parties. Here, the parties agreed to conditions precedent before arbitration can take place and, by placing those conditions in the contract, the parties clearly intended to make arbitration a dispute resolution mechanism of last resort. Kemiron, 290 F.3d at 1290. The courts held that the parties' failure to conduct the required mediation meant that the arbitration clause was not invoked. HIM, 317 F.3d at 44; Kemiron, 290 F.3d at 1291 ("Because neither party requested mediation, the arbitration provision has not been activated and the FAA does not apply.") Without addressing the procedural arbitrability line of cases, these courts treat the precursor mediation as a contract compliance issue rather than an arbitration procedural issue. As presented in this petition, there is no question of fact with respect to the mediation prerequisite. The agreement expressly requires mediation as a precondition for requesting arbitration. The agreement binds relator. There is no allegation or proof that either party requested mediation, that they held a mediation, or that Jimenez resisted participating in mediation. Relator has failed to comply with the terms of its contract with Jimenez setting up preconditions for arbitration. Under either the Warehouseman or the HIM/Kemiron theories, the arbitration clause has not been triggered. See Warehousemen, 331 F.3d at 488; HIM, 317 F.3d at 44; Kemiron, 290 F.3d at 1291. We do not express any opinion regarding whether relator has waived the right to arbitrate upon satisfaction of the preconditions, only that the right to compel arbitration has not yet accrued under the terms of the contract. Nor do we express any opinion regarding whether this lawsuit should continue in the trial court despite the fact that an alternative dispute resolution and arbitration agreement exists (whether enforceable or not), but Jimenez has not complied with it and the relator has not properly invoked it. On the undisputed record presented here, the trial court did not abuse its discretion by refusing to compel arbitration. The petition for writ of mandamus is denied. G. Alan Waldrop, Justice Before Justices Patterson, Pemberton and Waldrop Filed: May 24, 2007 1. Relator contends that the court abused its discretion by excluding Pisces Vice President of Operations Phil Stanton's affidavit and its attachments that set out the terms of the dispute resolution program. For purposes of this opinion, we will consider the affidavit and its attachments as if they were admitted. 2. Jimenez contends that she did not agree to be bound by the program and that forcing her participation would be unconscionable. We need not reach these assertions.

Arbitration denied because mediation had not been attempted

Context: Employment, Workplace Safety, Nonsubscriber, Negligence, Wrongful Death and Survivor Claims Arbitration agreement provided for disputes to be submitted to arbitration only if they could not be resolved through company's internal dispute resolution mechanism or mediation. Houston Court of Appeals does not reach the issue whether survivors are bound be deceased employee's agreement to arbitrate claims that could not be resolved internally or through mediation. Court declines to grant mandamus to set aside trial court's denial of employer's motion to compel arbitration. In Re Igloo Products Corp. , No. 14-07-00185-CV (Tex.App.- Houston [14th Dist.] Nov. 1, 2007)(Frost)(arbitration mandamus denied) Appeal from 155th District Court of Waller County (Judge Daniel R. Beck) IN RE IGLOO PRODUCTS CORP. AND JOSE RODRIGUEZ, Relators ORIGINAL PROCEEDING WRIT OF MANDAMUS OPINION BY JUSTICE KEM FROST In this original proceeding, relators Igloo Products Corporation and Jose Rodriguez seek a writ of mandamus directing the respondent, Dan R. Beck, presiding judge of the 155th District Court of Waller County, (1) to vacate his January 9, 2007 order denying relators' motion to compel arbitration, and (2) to grant relators' motion to compel arbitration of all claims pending in the action and to stay trial court proceedings pending such arbitration. We deny the petition for writ of mandamus. Underlying Facts and Procedural History Igloo Products Corporation is a manufacturing company in Houston, Texas. Igloo does not carry workers' compensation insurance and is thus not a subscriber to the Texas Workers' Compensation Act. Tex. Labor Code Ann. ' 406.002 (Vernon 2006). Igloo, however, has established the Igloo Products Corp. Employee Injury Benefit Plan ("the Plan") under the federal Employee Retirement Income Security Act ("ERISA"). See generally 29 U.S.C. '1001 et seq. The Plan specifies certain medical, wage-replacement, dismemberment, burial, and death benefits payable to participating employees in the event of injury or death suffered in the course and scope of employment with Igloo. Participation in the Plan is not a condition of employment with Igloo. To participate in the Plan and to secure the right to receive the specified benefits, an employee must execute an Election and Arbitration Agreement.[1] Joel Varela was fatally injured on June 23, 2006, during the course and scope of his employment with Igloo. Because Varela was a participating employee under the Plan, Igloo paid medical, funeral, and burial expense benefits to his surviving spouse. Thereafter, Varela's spouse and children (collectively "the Varelas") filed the underlying lawsuit against Igloo and its employee, relator Jose Rodriguez. (Igloo and Jose Rodriguez are hereinafter collectively referred to as "the Igloo Parties.") The Varelas alleged that Joel Varela's death resulted from the Igloo Parties' negligence and gross negligence. The Varelas assert claims under the Texas Wrongful Death Act.[2] See Tex. Civ. Prac. & Rem. Code Ann. '' 71.001 B .012 (Vernon 1997 and Supp. 2006). In the trial court, the Igloo Parties moved to compel arbitration of the Varelas' claims under the terms of the Election and Arbitration Agreement that Joel Varela had executed in connection with his participation in the Plan ("the Agreement"). The Agreement purports to bind Varela's "beneficiaries, heirs, children, spouse, parents and legal representatives." The Igloo Parties further asserted that by having accepted payment of benefits under the Plan, the Varelas were equitably estopped and contractually precluded from avoiding the Agreement's arbitration provision. The Varelas opposed the motion to compel arbitration, arguing that neither Joel Varela's execution of the Agreement nor Igloo's payment of benefits owing to his estate could bind them to arbitrate their individual, personal claims for Joel Varela's wrongful death. The Varelas also contended that, even if the Agreement applied to their wrongful death claims, the trial court should not compel arbitration because the parties have not mediated the Varelas' claims. The trial court denied the Igloo Parties' motion to compel arbitration, and the Igloo Parties have filed a petition for writ of mandamus in this court. Standard of Review The Igloo Parties assert, and the Varelas do not dispute, that the Agreement in this case is subject to the Federal Arbitration Act ("FAA"). See generally 9 U.S.C. '1 et seq. Mandamus relief is available when the trial court abuses its discretion by erroneously denying a party its contracted‑for arbitration rights under the FAA. See In re D. Wilson Const. Co., 196 S.W.3d 774, 780-81 (Tex. 2006) (orig. proceeding). Therefore, the Igloo Parties' right to mandamus relief hinges on whether the trial court's refusal to compel arbitration was an abuse of its discretion.[3] A party seeking to compel arbitration must establish that a valid arbitration agreement exists and that the claims asserted are within the scope of the agreement. See In re D. Wilson Construction Co., 196 S.W.3d at 781. If these two showings are made, the burden shifts to the party opposing arbitration to present a valid defense to the agreement. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227-28 (Tex. 2003). In the absence of evidence of a valid defense, the trial court has no discretion to exercise and must compel arbitration and stay its own proceedings. In re J.D. Edwards World Solutions Co., 87 S.W.3d 546, 549 (Tex. 2002) (orig. proceeding). The trial court denied the Igloo Parties' motion to compel arbitration. The trial court concluded that the Igloo Parties failed to prove that (1) there is a valid, enforceable arbitration agreement between the Igloo Parties and the Varelas and (2) the Varelas' claims are within the scope of a valid, enforceable arbitration agreement. Analysis Both the Plan and the Agreement address resolution of disputes between Igloo and those employees who choose to participate in the Plan. Pertinent portions of both documents are set forth below. ELECTION AND ARBITRATION AGREEMENT By signing this Election and Arbitration Agreement (hereinafter "Agreement"), I, the undersigned employee of Igloo Products Corp. (hereinafter "the Company"), voluntarily elect to participate in the Igloo Products Corp. Employee Injury Benefit Plan (hereinafter the "Plan") and agree with the Company to the following: * * * MUTUAL PROMISES TO RESOLVE CLAIMS BY BINDING ARBITRATION: I recognize that disputes may arise between the Company (or one of its affiliates) and me during or after my employment with the Company. I understand and agree that any and all such disputes that cannot first be resolved through the Company's internal dispute resolution procedures or mediation must be submitted to binding arbitration. I acknowledge and understand that by signing this Agreement I am giving up the right to a jury trial on all of the claims covered by this Agreement in exchange for eligibility for the Plan's medical, disability, dismemberment, death and burial benefits and in anticipation of gaining the benefits or a speedy, impartial, mutually-binding procedure for resolving disputes. Igloo Products Corp. Employee Injury Benefit Plan * * * Arbitration of Employment Disputes: By executing and agreeing to the Election and Arbitration Agreement, an Employee affirmatively agrees to submit to binding arbitration all claims or disputes covered by the Election and Arbitration Agreement. * * * B. Arbitration Procedures. The following provisions are incorporated by reference into, and made part of, the Election and Arbitration Agreement, the same as if they were set forth at length in the Election and Arbitration Agreement itself: * * * 3. Mediation: The Company (and each Employer) and I agree that the arbitration procedures described in this Paragraph B . . . and incorporated by reference into the Election and Arbitration Agreement shall not be invoked unless the party seeking arbitration has first mediated the dispute with the other party or parties . . . .[4] The Varelas concede that Joel Varela entered into a valid arbitration agreement with Igloo. They dispute, however, whether that agreement binds them to arbitrate their own personal claims for wrongful death of their husband and father. The Varelas assert that Joel Varela did not and could not bind his spouse and children to arbitrate rather than litigate their wrongful death claims against Igloo. The Igloo Parties assert that the Varelas' acceptance of medical, funeral, and burial benefits under the Plan independently binds them to the arbitration provision. However, we need not address these arguments because we conclude that, even presuming, without deciding, that the Varelas are bound to the arbitration provisions of the Agreement, the Varelas' claims are not within the scope of claims subject to arbitration under the Agreement. The Agreement requires that "any and all ... disputes that cannot first be resolved through the Company's internal dispute resolution procedures or mediation must be submitted to binding arbitration."[5] The Plan's arbitration procedures, which are incorporated by reference into the Agreement, "shall not be invoked unless the party seeking arbitration has first mediated the dispute with the other party."[6] Neither party has suggested the Plan or the Agreement is ambiguous, and we conclude that both documents unambiguously provide for the arbitration only of claims that cannot first be resolved through Igloo's internal dispute resolution procedures or mediation. The Igloo Parties admit that the Varelas' claims have not been mediated or otherwise submitted to Igloo's internal dispute resolution procedures. In their motion to compel arbitration, the Igloo Parties neither alleged nor presented any proof that (1) the Varelas' claims fell within the category of claims that could not be resolved through Igloo's internal dispute resolution procedures or through mediation or (2) the Varelas' claims had been subjected to Igloo's internal dispute resolution procedures or mediation. The Igloo Parties contend, however, that it is for the arbitrator, not the courts, to decide whether arbitration is precluded by there having been no prior mediation or internal dispute resolution procedures. In making this argument, the Igloo Parties rely primarily on Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 123 S. Ct. 588, 154 L. Ed. 2d 491 (2002). Howsam involved a dispute between a securities brokerage firm and its former customer. After the customer commenced arbitration proceedings under the arbitration clause of her brokerage account agreement, the firm filed suit in federal district court seeking a declaratory judgment that the dispute was ineligible for arbitration and an injunction prohibiting the customer's prosecution of the arbitration proceeding. The firm claimed that arbitration was precluded by the terms of the arbitration code of the National Association of Securities Dealers ("NASD"), under the auspices of which the customer had elected to arbitrate. The NASD code included a rule that no dispute "shall be eligible for submission [to arbitration] . . . where six (6) years have elapsed from the occurrence or event giving rise to the . . . dispute." Finding that the NASD arbitrator should interpret whether the NASD time-limit rule precluded prosecution of the arbitration, the district court dismissed the firm's action. On appeal, the Court of Appeals for the Tenth Circuit reversed, concluding that application of the NASD rule presented a question of the underlying dispute's arbitrability, which is presumptively for a court to decide. On certiorari, the United States Supreme Court stated that courts, rather than arbitrators, should decide "gateway" matters that "contracting parties would likely have expected a court to have decided . . . where they are not likely to have thought that they had agreed that an arbitrator would do so, and consequently, where reference of the gateway dispute to the court avoids the risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate." Howsam, 537 U.S. at 83B84, 123 S. Ct. at 592. The Supreme Court stated that courts, rather than arbitrators, should decide gateway disputes as to whether parties are bound by a given arbitration clause or whether an arbitration agreement covers a particular kind of controversy. See id., 537 U.S. at 84, 123 S. Ct. at 592. On the other hand, matters of "procedural arbitrability," such as allegations of waiver, delay, or a similar defense to arbitrability, are presumptively for the arbitrator to decide. See id. However, this presumption may be overcome by language in the arbitration agreement reflecting an intent contrary to this presumption. See id. The agreement in Howsam did not exempt from the scope of the arbitration clause claims based on an event that occurred more than six years before the claim was submitted to arbitration. See id., 537 U.S. at 81B82, 123 S. Ct. at 591. The United States Supreme Court held that application of the NASD time-limit rule was the province of the arbitrator based on the arbitration agreement at issue. See id., 537 U.S. at 84-86, 123 S. Ct. at 592-3. Two of our sister courts have construed Howsam in the context of an agreement containing a mediation requirement. See In re Pisces Foods, L.L.C., 228 S.W.3d 349 (Tex. App.-Austin 2007, orig. proceeding); In re R&R Personnel Specialists of Tyler, Inc., 146 S.W.3d 699 (Tex. App.-Tyler 2004, orig. proceeding). In R&R Personnel Specialists, the party opposing arbitration argued that the movant had waived its right to arbitration by failing (1) to give timely notice of its underlying claim; (2) to give written notice of its intent to arbitrate the claim; and (3) to participate in mediation before seeking arbitration. Citing Howsam, but without quoting the contractual language on which any one of these purported requirements was based, the court of appeals characterized waiver as a question of procedural arbitrability for the arbitrator to decide. The court granted mandamus relief directing the trial court to vacate its order denying arbitration and to compel such arbitration. R&R Personnel Specialists, 146 S.W.3d at 704B05.[7] In Pisces Foods, the trial court denied an employer's motion to compel arbitration of an employee's personal injury claim. The arbitration agreement stated: Each Step [of this dispute resolution program] must be followed in sequence so that we have every opportunity to work together toward an agreeable resolution of the issue . . . . If you have a work-related problem that involves a legally protected right that could not be settled through Steps 1, 2 or 3 [internal dispute resolution procedures and mediation] of the Program, you may request arbitration. Pisces Foods, 228 S.W.3d at 351. Without deciding (1) the employee's claim that she was not bound by the agreement or (2) the employer's claim that the agreement had been wrongfully excluded from evidence at the hearing on the motion to compel arbitration, the court of appeals held that arbitration was not available under the agreement because no mediation had occurred. Id. Discussing both Howsam and R&R Personnel Specialists, as well as a number of decisions from other jurisdictions,[8] the Austin Court of Appeals held that the relator's right to arbitration had not yet accrued or been triggered because there was no proof that either party had requested or attempted mediation. Pisces Foods, 228 S.W.3d at 353-54. The Varelas do not contend (as did the employee in R&R Personnel Specialists) that failure to mediate the claims constitutes a waiver of the Igloo Parties' right to compel arbitration.[9] They assert that the Agreement has not yet been triggered and that the trial court thus properly declined to compel arbitration. If Joel Varela agreed to arbitrate all claims and disputes with Igloo without any reference to mediation but with separate arbitration procedures providing for prior submission of disputes to mediation, we might reach a different conclusion. In this case, however, the only claims that Joel Varela agreed to arbitrate were "disputes that cannot first be resolved through [Igloo's] internal dispute resolution procedures or mediation." Because arbitration is a matter of contract, a party cannot be required to submit to arbitration any dispute which he has not agreed to submit to arbitration. Howsam, 537 U.S. at 83, 123 S. Ct. at 591. Joel Varela agreed to arbitrate only disputes that were not resolved by Igloo's internal dispute resolution procedures or mediation. Therefore, the issue at hand is a "gateway dispute" as to whether the arbitration agreement covers a particular kind of controversy, and courts, rather than the arbitrator, must resolve this issue. See id., 537 U.S. at 84, 123 S. Ct. at 592; HIM Portland, LLC v. Devito Builders, Inc., 317 F.3d 41, 44 (1st Cir. 2003); Kemiron Atlantic, Inc. v. Aguakem International, Inc., 290 F.3d 1287, 1289-90 (11th Cir. 2002); Pisces Foods, 228 S.W.3d at 353-54; see also Allen v. Apollo Group, Inc., No. Civ.A.H-04-3041, 2004 WL 3119918, at *5-8 (S.D. Tex. Nov. 9, 2004) (Rosenthal, J.). Presuming, without deciding, that the Varelas are bound by the arbitration provisions in question, the trial court did not abuse its discretion by impliedly determining that the Igloo Parties did not prove that the Varelas' claims fall within the scope of the arbitration agreement because they are not "disputes that cannot first be resolved through [Igloo's] internal dispute resolution procedures or mediation." See Pisces Foods, 228 S.W.3d at 353-54.[10] Accordingly, we deny the Igloo Parties' petition for writ of mandamus and vacate our March 8, 2007 order staying proceedings in the trial court. /s/ Kem Thompson Frost Justice Petition Denied and Opinion filed November 1, 2007. Panel consists of Justices Frost, Seymore, and Guzman. [1] The Election and Arbitration Agreement specifically excludes criminal matters and claims for unemployment benefits from the arbitration requirement. [2] The Varelas previously asserted a claim under the Texas survival statute, but they no longer assert this claim. See Tex. Civ. Prac. & Rem. Code Ann. ' 71.021 (Vernon 1997). [3] In 1992, addressing whether a party is entitled to mandamus relief for wrongful denial of its arbitration rights under an agreement subject to the FAA, the Texas Supreme Court concluded that the Texas Arbitraton Act ("TAA") does not provide such a party the ability to assert an interlocutory appeal. See Jack B. Anglin, Inc. v. Tipps, 842 S.W.2d 266, 272-73 (Tex. 1992). In 2006, the Texas Supreme Court decided that such a party can file an interlocutory appeal of the trial court's denial of a motion to compel arbitration under an agreement governed by the FAA. See In re D. Wilson Const. Co., 196 S.W.3d 774, 778-80 (Tex. 2006). It might appear that the Igloo Parties are not entitled to mandamus relief in this case because the FAA governs the Agreement and, under In re D. Wilson Const. Co., they have an adequate remedy at law by interlocutory appeal. See id. However, the Texas Supreme Court reaffirmed in In re D. Wilson Const. Co. that mandamus remains available when a party is erroneously denied its contracted‑for arbitration rights under the FAA. See In re D. Wilson Const. Co., 196 S.W.3d at 780-81. Therefore, we conclude that mandamus relief is still potentially available to the Igloo Parties. [4] All boldface and underlining emphasis shown in the quoted material is contained in the original documentation. [5] Italic emphasis added; underlining in original. [6] All emphasis added. [7] See also In re Weekley Homes, 985 S.W.2d 111 (Tex. App.-San Antonio 1998, orig. proceeding) (holding, pre-Howsam, that whether party's failure to mediate before invoking arbitration provision releases other parties from obligation to arbitrate is procedural question for arbitrator to address in cases in which arbitration agreement did not exempt claims that had not been mediated). [8] See General Warehousemen & Helpers Union Local 767 v. Albertson's Distribution, Inc., 331 F.3d 485, 488 (5th Cir. 2003); HIM Portland, LLC v. Devito Builders, Inc., 317 F.3d 41, 44 (1st Cir. 2003); Kemiron Atlantic, Inc. v. Aguakem International, Inc., 290 F.3d 1287 (11th Cir. 2002); Allen v. Apollo Group, Inc., No. Civ.A.H-04-3041, 2004 WL 3119918 (S.D. Tex. Nov. 9, 2004) (unreported decision). [9] The Varelas assert a waiver argument, but it is based solely on the contention that by substantially invoking the judicial process, the Igloo Parties have waived the right to arbitrate. However, based on our disposition, we need not address the Varelas' argument in this regard. [10] This court relied on Howsam in granting mandamus relief directing the trial court to compel arbitration in In re Global Construction Company, L.L.C., 166 S.W.3d 795 (Tex. App.-Houston [14th Dist.] 2005, orig. proceeding). The question posed was whether "the underlying dispute, in which the real party in interest claims that arbitration is time-barred, is an issue of procedural arbitrability and thus for the arbitrator, or is an issue of substantive arbitrability for the court." Id. at 796 (citing Howsam). Under the contract at issue in that case, a demand for arbitration was required to be made "within 30 days after the date on which the party making the demand receives the final written decision [of the Architect]." The trial court "expressly found that [the party] waived its right to arbitrate those claims that had been submitted to the architect by failing to demand arbitration within thirty days." Id. at 797. We held that Aany contractual time limit on a request for arbitration is a matter for the arbitrator." Id. at 799. Although the contract in that case required mediation, the parties did not raise, and the court did not address, this requirement. Id. at 797-99. Indeed, in that case, the parties had agreed that the claims involved fell within the scope of the agreement. Id. at 798. In addition, unlike the Agreement in this case, the arbitration agreement in that case stated that '[a]ny claims arising out of or related to the Contract' are subject to arbitration." Id. at 796. Therefore, In re Global Construction Company is not on point.

Corpus Christi Court of Appeals mandates arbitration in workplace injury case

Thirteenth Court of Appeals finds that motion to compel arbitration should have been granted in the absence of any viable defense; Writ of mandamus conditionally granted. In Re: SSP Partners, No. (Tex.App.- Corpus Christi, Aug. 14, 2007)(Opinion by Justice Benavides)(arbitration compelled by mandamus)(Before Justices Rodriguez, Garza and Benavides) Appeal from 398th District Court of Hidalgo County Before Justices Rodriguez, Garza, and Benavides Memorandum Opinion by Justice Benavides Relator, SSP Partners, brings this petition for writ of mandamus complaining of the trial court's order denying its motion to compel arbitration. We conclude that real party in interest, Virginia Torres, failed to raise a valid defense to arbitration. Therefore, all of Torres's claims should have been sent to arbitration. We conditionally grant the writ. I. Background In February 2005, Virginia Torres, a native of Mexico, applied for employment with the Circle K convenience store ("Circle K") located on La Homa Road in Mission, Texas. Circle K is owned and operated by SSP Partners. Torres is illiterate in both English and Spanish and, therefore, took the employment application home to obtain assistance from her seventeen-year-old daughter. Torres went back to the Circle K with her daughter to submit the completed employment application. At that time, Circle K agreed to hire her and asked her to fill out an Election and Arbitration Agreement ("the Agreement"). The Agreement was in English and was administered by two Anglo-American women who did not speak Spanish. Torres's daughter translated the document for her, and Torres signed it. Torres alleges that even though the Agreement was translated, she did not understand the document or what she was signing. The Agreement is a mutual arbitration agreement and an election for SSP Partners' Employee Injury Benefit Plan. SSP Partners is a non-subscriber under the Texas Workers' Compensation Act and, therefore, offers its employees the Employee Injury Benefit Plan instead. The first page of the Agreement discusses the circumstances in which an employee is entitled to benefits under the Employee Injury Benefit Plan. The Agreement specifically states that an employee is eligible for benefits if the injury occurs "on the job." Beneath this section and continuing through the rest of the document is the agreement to arbitrate. The Agreement provides that both SSP Partners and the employee agree to pursue any claims and remedies that they may have against one another in arbitration before the American Arbitration Association rather than in a judicial forum. The parties agreed to arbitrate "any and all: . . . tort claims, including negligence, negligence per se and gross negligence claims (including claims for personal or bodily injury or physical, mental or psychological injury, without regard to whether or not such injury was sustained on the job)." (emphasis added). Both parties also agreed to follow any procedures that are contained within the Summary Plan Description, which outlines the arbitration procedures. The Summary Plan Description requires that a party seeking to invoke arbitration must first provide notice to the opposing party and also must mediate the dispute. Failure to provide notice or mediate the dispute prevents invocation of the Agreement. Once the Agreement has been invoked, the Agreement provides that SSP Partners is to pay all expenses of arbitration after the first $250, that each party will only have the right to take one deposition of one individual and an expert witness, and that the arbitrator will be assigned by the American Arbitration Association. After signing the document, Torres began to work for Circle K. One day while off work, Torres stopped at the Circle K to purchase some food. She was informed that her schedule had changed. She went in the back to check the schedule, slipped on a misplaced floor mat, and was injured. Torres applied for benefits under the plan but was denied. Torres sued SSP Partners for negligence, seeking damages for her injuries. In response to Torres's suit, SSP Partners filed a motion to compel arbitration based on the Agreement. Torres filed a response to the motion in which she repeatedly argued the unconscionability of the Agreement and the Employee Benefit Injury Plan. However, she did not attach any affidavits or other admissible evidence to support her response. At an evidentiary hearing on SSP Partners' motion, the trial court allowed Torres to put on evidence, including her own testimony regarding the unconscionability of the Agreement and the Employee Benefit Injury Plan, over SSP Partners' objection. The relevant portion of her testimony follows: Q: Okay. Ma'am let me show you the [Agreement] and ask you whether or not that is your signature. A: Yes, this one. Q: Okay. And - - and during your meeting with the American ladies, American Anglo ladies, did they themselves explain the [Agreement] to you in Spanish? A: No. Like - - they spoke English. Q: Okay. Did you have an opportunity to bargain with regard to the [Agreement] or the summary description? A: No. Q: Okay. Did you, Ma'am - - did you have anything to do with drafting those documents? A: No. I only wanted to work. . . . . Q: Okay. Did they have somebody who knew how to speak Spanish there to translate those documents to you? A: No. After Torres's testimony and oral arguments, the trial court denied SSP Partners' motion to compel arbitration. SSP Partners then filed this petition requesting a writ of mandamus directing the trial court to compel Torres's claims to arbitration. We requested a response and granted SSP Partners' motion for temporary relief, staying the trial court's proceedings. II. Mandamus is the Appropriate Procedural Vehicle Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal. In re Daisy Mfg. Co., 17 S.W.3d 654, 658 (Tex. 2000) (orig. proceeding). The Federal Arbitration Act ("FAA") may govern a written arbitration clause enforced in Texas state court, if the parties have expressly designated it to govern. Volt Info. Sci. v. Bd. of Trs., 489 U.S. 468, 479 (1989); In re AdvancePCS Health, L.P., 172 S.W.2d 603, 605-06 & n.3 (Tex. 2006) (orig. proceeding). If the parties have designated the FAA to govern their arbitration agreement, then that designation should be upheld. See In re AdvancePCS Health, L.P., 172 S.W.2d at 606 & n.3. The Agreement in this case expressly states that the FAA governs. This Court will uphold that express designation. Texas law does not permit an interlocutory appeal of an order denying arbitration under the FAA. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). Because this case is governed by the FAA, mandamus is the appropriate vehicle for review. Id. III. Discussion Texas procedure governs the enforcement of arbitration agreements under the FAA in a Texas court. Id. at 268. First, a party seeking to compel arbitration must file a motion to compel arbitration demonstrating (1) a valid agreement to arbitrate between the parties and (2) the dispute is within the scope of the arbitration agreement. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753-54 (Tex. 2001) (orig. proceeding). The trial court's determination of the validity of an arbitration agreement is a legal question reviewed de novo. Id. As to the second element, however, because federal policy favors arbitration, a presumption exists favoring agreements to arbitrate under the FAA. Id. Therefore, courts must resolve any doubts about an arbitration agreement's scope in favor of arbitration. Id. Trial courts are instructed not to deny arbitration "unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute." In re Dillard Dep't Stores, Inc., 186 S.W.3d 514, 515-16 (Tex. 2006) (orig. proceeding) (per curiam). Once the party seeking to compel arbitration makes the required showing, the burden shifts to the party opposing arbitration to establish a defense to arbitration. In re RLS Legal Solutions, LLC, 221 S.W.3d 629, 630 (Tex. 2007) (orig. proceeding); In re Jebbia, 26 S.W.3d 753, 756 (Tex. App.-Houston [14th Dist.] 2000, orig. proceeding). If the non-movant does present a defense to arbitration, the trial court has no discretion but to compel arbitration and stay its own proceedings. See In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999) (orig. proceeding); Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996) (orig. proceeding) (per curiam). In Jack B. Anglin, the Texas Supreme Court held that a motion to compel arbitration is to be decided summarily. Jack B. Anglin Co., 842 S.W.2d at 269. The court observed: "we think it unlikely that the legislature intended the issue to be resolved following a full evidentiary hearing in all cases." Id. The court then stated that in deciding summarily, the trial court may make its decision on the basis of affidavits, pleadings, discovery, and stipulations. Id. However, if fact issues exist, the court may hold a hearing to determine whether to compel arbitration. Id. A. SSP Partners demonstrated a valid agreement to arbitrate. SSP Partners argues that it demonstrated a valid agreement to arbitrate, and therefore, it was entitled to arbitration. SSP Partners filed a motion to compel arbitration attaching the Agreement, which is signed by Torres. Torres does not dispute that she signed the Agreement. Rather, Torres argues the trial court had discretion to deny arbitration because SSP Partners did not provide evidence of the satisfaction of the arbitration procedures outlined in its agreement, which she argues were conditions precedent to the invocation of the arbitration agreement. Specifically, she claims that SSP Partners failed to provide written notice of its intent to compel arbitration and failed to mediate her claims before seeking arbitration. We disagree with Torres and hold satisfaction of pre-arbitration procedures is a matter of procedural arbitrability and is, therefore, properly decided by an arbitrator. Procedural arbitrability encompasses those questions that "grow out of the dispute and bear on its final disposition." In re R & R Specialists of Tyler, Inc., 146 S.W.3d 669, 704 (Tex. App.-Tyler 2004, orig. proceeding) (citing Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85 (2002)). "Questions of procedural arbitrability relate to whether procedures have been followed or excused and whether an unexcused failure to follow such procedures allows a party [to] enforce the duty to arbitrate." Id. at 704-05 (citing John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557 (1964)). Such questions encompass determinations as to whether the conditions precedent to arbitration, such as notice and time limits, have been met and are questions for the arbitrator to decide. Id. (citing Howsam, 537 U.S. at 84). In R & R Specialists of Tyler, Inc., the plaintiff claimed that his employer failed to comply with the express provisions of the arbitration agreement by "not giving written notice of its intention to seek arbitration, not complying with the deadlines regarding notice of claim, and not participating in mediation before seeking arbitration." R & R Specialists of Tyler, Inc., 146 S.W.3d at 703. The court held that this argument relates to procedural arbitrability and is, therefore, a question for the arbitrator to decide. Id. at 704. Similarly, in Grand Homes 96, L.P. v. Loudermilk, Grand Homes argued that the Loudermilks never demonstrated that they had satisfied conditions precedent to arbitration. Grand Homes 96, L.P., 208 S.W.3d 696, 701 (Tex. App.-Fort Worth 2006, pet. filed). The court held that procedural questions, including whether procedures have been followed or excused and whether an unexcused failure to follow such procedures allows a party to avoid the duty to arbitrate, are left for the arbitrator to decide. Id. at 702 (citing In re Weekley Homes, 985 S.W.2d 111, 114 (Tex. App.-San Antonio 1998, orig. proceeding)). In this case, Torres argues that SSP Partners has not provided "evidence showing the arbitration procedure outline[d] in the arbitration agreement had or had not been followed." Torres, therefore, argues that SSP Partners did not demonstrate that a valid arbitration agreement existed. She argues that without this proof, the trial court had discretion to deny arbitration and to proceed with an evidentiary hearing. This argument fails because, as discussed above, whether the condition precedent has been satisfied is not a question for the court to decide; it is a question for the arbitrator. Id. B. The dispute is within the scope of the agreement. SSP Partners argues that it met its burden of proving that the Agreement covers the claims at issue because the Agreement's scope is broad and applies to all personal injury claims, whether sustained on or off the job. SSP Partners directs us to the following language in support of its argument: "The types of claims covered by this agreement include, but are not limited to, any and all . . . tort claims, including negligence, negligence per se and gross negligence claims (including claims for personal injury or bodily injury or physical, mental or psychological injury, without regard to whether or not such injury was sustained on the job) . . . ." (emphasis added). In contrast, Torres argues that the Agreement is only invoked if the injury occurred "on the job" or "within the scope of employment," relying on language contained in the initial description of benefits under the Plan. Again, we disagree with Torres. A court should not deny arbitration "unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue." In re Dillard Dep't Stores, Inc., 186 S.W.3d at 516. Further, the courts are required "to construe arbitration clauses broadly, and when a contract contains an arbitration clause, there is a presumption of arbitrability." In re Choice Homes, Inc., 174 S.W.3d 408, 413 (Tex. App.-Houston [14th Dist.] 2005, orig. proceeding). Therefore, any doubts are to be resolved in favor of coverage. Id. In Choice Homes, the plaintiff/employees sued their employer for injuries they sustained after the employer terminated their employment. Id. The employer moved to compel arbitration based on an agreement that expressly applied to "all claims and disputes that [the employee] may now have or may in the future have against the Company." Id. at 413. Construing the clause broadly, the Houston court of appeals interpreted this clause as covering "many types of claims including but not limited to tort claims, claims for personal or bodily injury or physical, mental, or psychological injury, without regard to whether such injury was sustained on the job." Id. It held that the clause included those injuries that occurred after termination. Id. at 414. The language in the Agreement between Torres and SSP Partners is even clearer than the language in Choice Homes. It expressly provides that it applies "without regard to whether or not such injury was sustained on the job." (emphasis added). We cannot discern any ambiguity in the clause. Although Torres points to language at the beginning of the contract describing the benefits available under the Plan, which only provides benefits for injuries sustained on the job, there is no such limit in the arbitration clause itself. Even if it could be said that the Plan's coverage provisions created an ambiguity, we must resolve this ambiguity in favor of coverage. Id. at 413; see also Dillard, 186 S.W.3d at 516. Therefore, we hold that the language in the Agreement includes Torres's claim for personal injuries sustained while off the job. SSP Partners proved a valid agreement arbitrate covering Torres's claims. We must decide, therefore, whether Torres raised a defense to arbitration. If not, the trial court abused its discretion by refusing to compel arbitration. C. Torres failed to raise a valid defense to arbitration. SSP Partners argues that the trial court had no discretion to refuse to compel arbitration because Torres did not raise a defense to arbitration. Specifically, SSP Partners argues that Torres did not attach any affidavits or other evidence to her response to the motion to compel, citing our decision in Prudential Securities, Inc. v. Bañales, 860 S.W.2d 594 (Tex. App.-Corpus Christi 1993, orig. proceeding). Therefore, according to SSP Partners, Torres failed to raise a defense to arbitration and was not entitled to a hearing. Torres argues in response that the court had discretion to deny arbitration because she presented evidence at the hearing that the arbitration agreement is unconscionable and thus unenforceable, attempting to distinguish Prudential Securities. We need not decide whether Torres's failure to present affidavits in support of her response precluded her presentation of a defense to arbitration, however, because even if the trial court had the discretion to hold the evidentiary hearing, Torres's alleged defense to arbitration was inadequate to defeat SSP Partners' motion to compel arbitration. See Tex. R. App. P. 47.1. In Prima Paint Corp. v. Flood & Conklin Mfg. Co., the United States Supreme Court held that under the FAA, "if the claim is fraud in the inducement of the arbitration clause itself, the federal court may proceed to adjudicate it, but the statutory language does not permit the federal court to consider claims of fraud in the inducement of the contract generally." Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967). "[U]nder federal law, the arbitration clause was severable from the underlying contract." Teal Const. Co./Hillside Villas Ltd. v. Darren Casey Interests, Inc., 46 S.W.3d 417, 420 (Tex. App.-Austin 2001, pet. denied) (citing and interpreting Prima Paint, 388 U.S. at 404). Texas Courts have interpreted this holding to mean that a defense applicable to an entire contract containing an arbitration provision must be submitted to the arbitrator, whereas a defense to the arbitration clause itself can be decided by a court. In re AdvancePCS Health, L.P., 172 S.W.3d at 608 n.7; In re FirstMerit Bank, 52 S.W.3d at 758; In re Service Corp. Int'l, 162 S.W.3d 801, 809 (Tex. App.-Corpus Christi 2005, orig. proceeding). In RLS Legal Solutions L.L.C., the Texas Supreme Court held that the plaintiff was required to provide evidence of duress "specifically" and "exclusively" relating to the arbitration provision in order to avoid arbitration. In re RLS Legal Solutions L.L.C., 221 S.W.3d at 632. In that case, the plaintiff sued her employer in a dispute over compensation and benefits, and the employer moved to compel arbitration. Id. The plaintiff claimed that the employer used duress to force her into signing the agreement, but she did not provide the evidence of duress relating to the arbitration provision exclusively. Id. The Texas Supreme Court held that the trial court abused its discretion in refusing to compel arbitration because "[n]either 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." Id. at 631. The court held that "[u]nless 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." Id. (1) Neither in her pleadings nor in her testimony does Torres specifically state that she is arguing against the arbitration clause instead of the entire agreement. Rather in her response to the SSP Partners' motion to compel, Torres repeatedly argued against both the arbitration clause and the Employee Injury Benefit Plan. She testified at the hearing that she did not understand any portion of the Agreement-- including both the Employee Injury Benefit plan and the arbitration clause. Because the Supreme Court requires Torres to have exclusively and specifically argued only against the arbitration provision, and Torres did not do so, her contractual defenses to arbitration must be submitted to the arbitrator. Therefore, even if Torres was properly granted a hearing, the trial court did not have discretion to deny the SSP Partners' motion to compel arbitration. IV. Conclusion We conclude that SSP Partners met its burden, and in the absence of a defense to arbitration, the trial court did not have discretion to refuse to compel arbitration. We conditionally grant the petition for writ of mandamus and order the trial court to vacate its order denying relator's motion to compel arbitration. The writ will issue only if the trial court fails to vacate its order. We lift the stay issued by this Court on February 20, 2007 and direct the trial court to proceed in accordance with this opinion. ___________________________ GINA M. BENAVIDES, Justice Memorandum Opinion delivered and filed this the14th day of August, 2007. 1. An example of what is considered sufficiently "specific" may be seen in a decision by the Fourteenth Court of Appeals. In that case, the arbitration agreement was between a builder and the homeowners. TMI, Inc. v. Brooks, 225 S.W.3d 783, 788 (Tex. App.-Houston [14th Dist.] May 10, 2007, pet. filed). The court held that the homeowner's defense to arbitration related specifically to the arbitration clause because the homeowners "specifically and repeatedly asserted they would not have agreed to the arbitration provision itself had they known it encompassed any disputes beyond structural defects in their houses, which they believed were covered by the warranty program." Id. at 793 (emphasis added).