What is a “reasoned award” in arbitration - Houston Court of Appeal panel splits three ways on issue of first impression in review of arbitral award

Stages Stores, Inc. v Gunnerson, 

No. 01-13-00708-CV (Tex.App.- Houston [1st Dist.] Oct. 8, 2015)(op on reh'g)

Court's Opinion in Stages Stores, Inc. v, Gunnerson

 
A Houston Court of Appeals panel, on motion for rehearing, today handed down three opinions in appeal and cross-appeal of trial court's ruling on competing motion to confirm and set aside an arbitration award in an employment dispute. 

The authors of majority opinion, concurrence, and dissent disagree on meaning of "reasoned award" in dispute over whether arbitrator properly performed responsibility of resolving the case. The majority decides to reverse confirmation of the arbitral award and remand the case to the court below with instructions to the trial court to send the case back to the arbitrator to further address one particular issue raised by the defense. 
  
Justice Keyes wrote a vigorous dissent, arguing that the majority's approach, by heightening judicial review of arbitral decisionmaking and increasing the scrutiny of awards, thwarts the very rationale of arbitration, which is supposed to result in less costly, less formal, and more expeditious resolution of disputes. This case has already been dealt with in arbitration, in the trial court, in the court of appeals, and no end is yet in sight. Since the FAA is involved, it might even make it all the way to the U.S. Supreme Court. 

DISSENTING OPINION 

Opinion issued October 8, 2015

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-13-00708-CV

———————————

STAGE STORES, INC., Appellant

V.

JON GUNNERSON, Appellee

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Case No. 2013-21878

DISSENTING OPINION

I respectfully dissent. This case construes, as a matter of first impression in
Texas state court, the standards for a “reasoned award” in arbitrations brought
under the Federal Arbitration Act (FAA). See 9 U.S.C. §§ 1–16.

 I believe the majority’s decision to
reverse and remand this case is contrary to the controlling federal authority that the
lead opinion relies upon and purports to follow. I believe the award is sufficient to
satisfy the standards of a reasoned award under the FAA and that it is a mistake to
send this case back to the arbitrator to address her rejection of one of appellant
Stage Stores, Inc.’s defenses in making her award. Both the lead opinion and the
concurrence mistake an argument, which need not be addressed in a reasoned
award, and an issue, which must be disposed of in a reasoned award—as was done
here. In my view, affirmance of the arbitration award is the natural result of the
argument from federal authority relied upon in the lead opinion and the natural
holding under controlling federal authority. It is the disposition that is incorrect.
I would affirm the trial court’s confirmation of the arbitration award.

Background

Following an arbitration of an employment dispute between Stage Stores
and former employee, appellee Jon Gunnerson, the arbitrator issued a reasoned
award disposing of Gunnerson’s claim that Stage Store’s wrongfully refused to pay
benefits due to him based on his “good reason” for terminating his employment
contract. The lead opinion sets out the four specific rulings made by the arbitrator:
(1) that a valid contract existed between the parties; (2) that Stage’s
“actions in restructuring the organization and removing [Gunnerson]
from a direct reporting relationship to the CEO diminished
[Gunnerson’s] status, thereby allowing [Gunnerson] to terminate his
position for good reason pursuant to paragraph 4 of the Agreement”;
(3) that Gunnerson was entitled to recover attorneys’ fees; and (4) that

Gunnerson “failed to meet his burden of proof regarding the present
value of future stock options.” Slip Op. at 5.

Stage Stores applied to vacate this arbitration award, essentially arguing that,
in failing to specifically address each of its defenses to Gunnerson’s claim, the
arbitrator exceeded her powers or so imperfectly executed them that a mutual,
final, and definite award upon the subject matter submitted was not made. See Slip
Op. at 7 (citing 9 U.S.C. § 10(a)(4)). The trial court denied Stage’s application
seeking to vacate the arbitration award and granted Gunnerson’s application to
confirm the award.

Discussion

Stage Stores complains that the arbitrator failed to mention one of its
defenses in the award, namely that the contract at issue required notice of the
grounds supporting good reason and an opportunity to cure before Gunnerson’s
contract could be terminated. It contends that, under the doctrine of functus officio,
which declares that arbitral judgments must be complete, it is entitled to a new
arbitral proceeding. The panel concludes that it “cannot fill in this gap for the
arbitrator,” but that it “can, however, have the trial court remand it to the arbitrator
to decide an issue which was raised but not completely adjudicated by the original
award.” Slip Op. at 28–29 (emphasis added).

I would hold that the parties raised no issue that the arbitrator did not
completely decide. Only a defense was not mentioned, and that defense was
necessarily rejected by the disposition of the encompassing issue. The arbitrator
did dispose of the issue raised by Stage Stores. She stated in the arbitration award
that Gunnerson was “allow[ed] to terminate his position for good reason pursuant
to paragraph 4 of the Agreement,” and she set out that Gunnerson was entitled to
receive his attorney’s fees but that he failed to meet his burden of proof regarding
the present value of stock purchases. The issue of whether he was allowed to
terminate his position has been completely decided, and there is no basis for
returning this case to the arbitrator.

Stage Stores’ real complaint is that the arbitrator did not specifically address
an argument—not the issue requiring resolution. And this assertion is insufficient
to establish that that arbitrator “exceeded [her] powers, or so imperfectly executed
them that a mutual, final, and definite award upon the subject matter submitted was
not made,” as required to vacate the award here. See 9 U.S.C. § 10(a)(4). By
deciding the actual issue submitted—i.e., that Stage Stores’ “actions in
restructuring the organization and removing [Gunnerson] from a direct reporting
relationship to the CEO diminished [Gunnerson’s] status, allow[ed] [him] to
terminate his position for good reason pursuant to paragraph 4 of the
Agreement”—the arbitrator necessarily decided Stage Stores’ defenses challenging

Gunnerson’s showing of good cause for termination. Nothing can be added to the
award to make it complete by sending it back to the arbitrator to hear a defense she
has already heard and rejected—as the lead opinion acknowledges.
Remand in this case is, in my view, directly contrary to the spirit and
purpose of the FAA, the federal case law construing reasoned arbitral awards, and
the functus officio doctrine the lead opinion seeks to apply. None of the law cited
in the lead opinion supports returning a case to the arbitrator to address each
argument made by the parties. Rather, all of the cases cited in the opinion hold to
the contrary. In my view, Stage Stores’ argument is identical to the type of
challenge to a reasoned award in federal arbitration that controlling federal
opinions have consistently found to be without merit. I disagree, therefore, that
remand is supported by the law controlling reasoned awards subject to the FAA.
The functus officio doctrine is the “rule that bars an arbitrator from revisiting
the merits of an award once the award has been issued.” Brown v. Witco Corp.,
340 F.3d 209, 218 (5th Cir. 2003) (cited in lead opinion, Slip Op. at 10–11). The
exceptions are limited. An arbitrator can (1) correct a mistake which is apparent on
the face of his award; (2) decide an issue which has been submitted but which has
not been completely adjudicated by the original award; or (3) clarify or construe an
arbitration award that seems complete but proves to be ambiguous in its scope and
implementation. Id. at 219. In Brown, the Fifth Circuit added that, “in the absence
of any contractual provision or formal arbitration rule expressly to the contrary,”
an arbitrator “may exercise his power to clarify the terms of an award when he is
asked to do so by parties mutually and without any party’s objection within a
reasonable period of time.” Id. None of these circumstances applies here. The
reasoned award requested by the parties and made by the arbitrator presents no
mistake on its face, decides each issue submitted, and contains no ambiguity that
prevents its being readily implemented. Therefore, the circumstances requiring
remand to the arbitrator under exceptions to the functus officio doctrine as
enunciated in Brown do not exist.

The Eleventh Circuit in Cat Charter, LLC v. Schurtenberger—a case
likewise relied upon in the lead opinion—described the requirements of a reasoned
award. It stated, “Logically, the varying forms of awards may be considered along
a ‘spectrum of increasingly reasoned awards,’ with a ‘standard award’ requiring
the least explanation and ‘findings of fact and conclusions of law’ requiring the
most,” so that “a ‘reasoned award is something short of findings and conclusions
but more than a simple result.’” 646 F.3d 836, 844 (11th Cir. 2011) (quoting
Sarofim v. Trust Co. of the W., 440 F.3d 213, 215 n.1 (5th Cir. 2006)); see also
Rain CII Carbon, LLC v. ConocoPhillips Co., 674 F.3d 469, 473 (5th Cir. 2012)
(accord). Thus, the Cat Charter court concluded, “Strictly speaking, then, a
listing or mention of expressions or statements offered as a justification of an act—
the ‘act’ here being, of course, the decision of the [arbitration] Panel.” 646 F.3d at
844 (emphasis in original.)

In Cat Carter, the appellate court refused to return the case to the arbitrator
in response to the defendants’ complaint that the award’s statement that the
plaintiffs had proved their claims “by the greater weight of the evidence” added no
explanatory value to the award “on what is most certainly a ‘bare’ or ‘standard’
award.” Id. The court held, to the contrary, that the arbitrators’ statement in the
award was “greater than what is required in a ‘standard award,’ and that is all we
need decide.’” Id. at 845. It pointed out that if the parties had wanted a greater
explanation they could have requested findings of fact and conclusions of law, but
they did not. Id. The Cat Charter court concluded:

We decline to narrowly interpret what constitutes a reasoned award to
overturn an otherwise apparently seamless proceeding. The parties
received precisely what they bargained for—a speedy, fair resolution
of a discrete controversy by an impartial panel of arbitrators skilled in
the relevant areas of the law. To vacate the Award and remand for an
entirely new proceeding would insufficiently respect the value of
arbitration and inject the courts further into the arbitration process
than Congress has mandated.
Id. at 846.

The Fifth Circuit cited this conclusion approvingly in Rain CII Carbon,
which is also relied upon by the lead opinion. 674 F.3d at 473–74. In both Rain CII
Carbon and Cat Charter, the federal circuit court construed federal arbitration law
and found an award that minimally addressed the issues sufficient to withstand a
party’s request for vacatur. See Rain CII Carbon, 674 F.3d at 474 (holding
sufficient for reasoned award “the arbitrator’s statement that, based upon all of the
evidence, he found that the initial price formula should remain in effect” after
delineating in previous paragraph “that Conoco had failed to show that the initial
formula failed to yield market price, a contention that the arbitrator obviously
accepted”); Cat Charter, 646 F.3d at 840–41, 845 (holding sufficient reasoned
award that declared that claimants had proven their Deceptive and Unfair Trade
Practices and breach of contract claim “by the greater weight of the evidence,” that
held that claimants were substantially prevailing parties and respondents were not,
awarded claimants their attorney’s fees, ordered respondents to “jointly and
severally pay” claimants specified damages, fees, costs, and interest, and granted
plaintiffs lien on boat).

The Sixth Circuit, like the Cat Charter court, refused to overturn the award
and to return the case to the arbitrator for clarification, finding that the arbitrator
“minimally satisfied the explanation requirement stated in the arbitration
agreement” by stating, with respect to each of the plaintiff’s three claims that the
plaintiff “has not met his burden of proof.” Green v. Ameritech Corp., 200 F.3d
967, 971, 977–78 (6th Cir. 2000).

By contrast to these cases holding that the requirements for a reasoned
award were satisfied, the Fifth Circuit declined jurisdiction over the trial court’s
order sending a case back to the arbitrators under the functus officio doctrine to
complete the task assigned them in a case where the award issued by the arbitral
panel was “patently ambiguous.” Murchison Capital Partners v. Nuance
Commc’ns, Inc., 760 F.3d 418, 423 (5th Cir. 2014) (stating, where trial court
returned case to arbitrators to determine whether part of determination made in
award was related only to benefit-of-the-bargain damages request of party or also
to out-of-pocket losses, that “declining jurisdiction over the district court’s order
and permitting the arbitration panel to clarify its award is necessary given our
deferential standard of review of arbitration awards”).

Here, there is no assertion of ambiguity, nor could there be. The arbitrator
clearly and expressly found “good reason pursuant to paragraph 4 of the
Agreement” for Gunnerson to terminate his position due to Stage Stores’ “actions
in restructuring the organization and removing him from a direct reporting
relationship to the CEO,” and awarded him his attorney’s fees. There is nothing to
clarify with respect to Stage Stores’ defense of notice and opportunity to cure and
nothing to add: the arbitrator rejected Stage Stores’ defense as grounds preventing
Gunnerson from terminating the contract, and it deemed him a prevailing party
entitled to attorneys’ fees. There is thus no basis for applying the exception to the
functus officio doctrine for lack of complete adjudication. The award completely
disposes of the termination issue.

In my view, it is clear that the arbitrator did enough in this case and that
there are no grounds for sending it back to the arbitrator under the ambiguity or
lack of clarity exceptions to the functus officio doctrine. The reasoned award at
issue is at least as comprehensive and detailed as the arbitral awards at issue in
Rain CII Carbon, Cat Charter, and Green. None of those cases sent a completely
decided arbitration award addressing every submitted issue back to the arbitrator
for a second attempt at arbitration, and none required that every argument or
defensive theory—as opposed to every issue—be disposed of. Indeed, one must
seriously question—as the federal courts that decided these federal arbitration law
cases did—what purpose is served by remand other than to introduce into
arbitration the same lengthy and costly court procedures that the parties sought to
avoid by agreeing to arbitration. And, worse, in this case, either the arbitrator will
reach a completely different result on the same facts or the arbitrator will reach the
same results, resulting in duplicative litigation. In neither case will the losing party
have recourse to the courts to second-guess the arbitrator’s second-time-around
decision, unless the state trial judge or appellate panel decides that the law was not
sufficiently explained to satisfy its own independent standards of review and sends
it back for the arbitrator to try yet again to satisfy the state courts on the federal
legal issues of sufficiency of the reasoned award.

The Eleventh Circuit set out in Cat Charter exactly why a reviewing court
should not require the detailed findings and conclusions of law the majority
imposes on the arbitrator in this case when the parties have merely requested a
reasoned award. The court stated:

Our conclusion today holds consistent with the general review
principles embodied in the FAA. The Supreme Court has read §§ 9-11
of the FAA as substantiating a national policy favoring arbitration
with just the limited review needed to maintain
arbitration’s essential virtue of resolving disputes
straightaway. Any other reading opens the door to the
full-bore legal and evidentiary appeals that can render
informal arbitration merely a prelude to a more
cumbersome and time-consuming judicial review
process, and bring arbitration theory to grief in the postarbitration
process.

Cat Charter, 646 F.3d at 845 (quoting Hall Street Assocs., LLC v. Mattel, Inc., 552
U.S. 576, 588, 128 S. Ct. 1396, 1405 (2008) (citations and internal quotation marks
omitted)).

To send this case back to the arbitrator is, to me, to pervert the ends of
federal arbitration as stated by the United States Supreme Court in Hall Street v.
Mattel, and as recognized by the Eleventh Circuit in Cat Charter, and to impose on
arbitrations subject to the FAA heightened state court standards of review of
reasoned arbitration awards that are clearly improper under, and superseded by,
controlling federal law. I, therefore, cannot join either the lead opinion or the
judgment of the majority. Much less can I join the concurrence, which would
require even more of the arbitrator for every reasoned award.

Conclusion

I would affirm the arbitration award.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Higley, and Brown.
Justice Brown, joining the majority and concurring.
Justice Keyes, dissenting.

Thwarted demand to arbitrate employment dispute did not extend the statute of limitations for lawsuit

    

Time employee’s claim against former employer spent in arbitration (which did not go forward because of employer’s refusal to pay the required fees) not added to limitations period under equitable tolling theory. Fifth Circuit affirms district court’s summary judgment based on four-year statute of limitations in opinion that is not precedent, but nevertheless instructive.

Fonseca v. USG Insurance Services, Inc. No 11-11063 (5^th Cir., Apr. 13, 2012) (per curiam)

 

From July 2001 until August 2006, Plaintiff-Appellant Victoria Fonseca worked for USG Insurance Services, Inc. ("USG") as the branch manager of USG's Arlington, Texas branch. Throughout Fonseca's employment, Gerald W. Horton served as USG's President. In November 2005, Horton offered Fonseca the opportunity to enter into a deferred compensation agreement ("DCA"). Subsequently, on August 29, 2006, USG fired Fonseca. Shortly thereafter, on September 8, 2006, Fonseca learned that USG did not intend to pay her under the DCA because USG had never received a signed acceptance.

 

On May 7, [2006], Fonseca filed an arbitration demand with the American Arbitration Association ("AAA"). On July 16, 2006, the AAA declined to serve as a arbitrator because USG failed to pay the required arbitration fees for this type of dispute. Fonseca then filed a suit on October 13, 2010 in Texas state court alleging fraud and breach of contract against Defendant-Appellees USG and Universal Specialty Underwriters, Inc. (collectively "the Defendants"). Defendants removed to district court on the basis of diversity. On summary judgment, the district court held that Fonseca's suit was time-barred based on Texas's four-year statute of limitations for these claims. Tex. Civ. Prac. & Rem. Code § 16.004 (fraud); id. at § 16.051 (breach of contract).

   
We review a district court's decision refusing to exercise its equitable tolling powers for abuse of discretion. Granger v. Aaron's, Inc., 636 F.3d 708, 712 (5th Cir. 2011). The doctrine of equitable tolling "preserves a plaintiff's claim when strict application of the statue of limitations would be inequitable." United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). It principally applies when the "plaintiff is actively misled by the defendant . . . or is prevented in some extraordinary way from exerting his rights." Id. Fonseca admits that under Texas's four-year statute of limitations, her claims expired on September 8, 2010 but contends that the statute of limitations should have been tolled during the period that the AAA considered her arbitration demand.
  

We have previously stated, albeit in dicta, that a "demand for arbitration does not toll the statute of limitations." United States ex rel. Portland Const. Co. v. Weiss Pollution Control Corp., 532 F.2d 1009, 1013 (5th Cir. 1976). In Portland Construction, we held that a claimant who demanded arbitration is not required to wait until the outcome of the arbitration to file a lawsuit. Id. In this case, Fonseca could have (and should have) filed her suit within the statute of limitations and, thereafter, sought a stay of the action pending arbitration. See id. Such a course would have guaranteed that the lawsuit was brought within the limitations period without waiving any right to arbitration which may have existed. Moreover, Fonseca has shown no evidence that she was misled by defendants or that she was prevented from pursuing her cause in any way. In fact, the record reveals that Fonseca had ample time both before and after the AAA's refusal to arbitrate her case in which to file her lawsuit, yet she took none of the steps "recognized as important by the statute before the end of the limitations period." Granger, 636 F.3d at 712. Therefore, in light of our decision in Portland Construction and the facts of this case, we cannot say that the district court abused its discretion when it declined to equitably toll the statute of limitations.

 

AFFIRMED.

  
[*] Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

EMPLOYMENT ARBITRATION: Hatton v. D.R. Horton, Inc. Sequel: Appeal After Arbitration Based on EAF Was Enforced by Mandamus Fails

APPELLATE OPINION AFTER MANDAMUS OFFERS NOTHING NEW In a short but signed opinion by its newest member - Justice Tracy Christopher - Houston's Fourteenth Court of Appeals declines to revisit - in an appeal from final take-nothing judgment - questions of enforceability of an arbitration requirement imposed by an employer that were previously the subject of a mandamus proceeding favorably decided for the employer. (A prior mandamus does not preclude a subsequent appeal). Hatton v. D.R. Horton, Inc. (Tex.App.- Houston [14th Dist.] Feb. 11, 2010) (arbitration agreement held enforceable in appeal from final judgment, with reference to prior grant of mandamus relief on same facts and legal arguments) (arbitration in the employment context, consent to arbitration by signing of AEF - employee acknowledgment form) MEMORANDUM OPINION The enforceability of the arbitration clause contained in D.R. Horton, Inc.’s employee handbook acknowledgment form is again before this Court. As we have already twice determined that the arbitration clause at issue here is valid and enforceable,[1] we issue this memorandum opinion and affirm the trial court’s judgment. Appellant Brenda Hatton began working for D.R. Horton in June of 1997 and signed its “Employee Acknowledgment Form” (“EAF”) in 2001. The EAF contained, among other matters, the arbitration clause at issue here. Hatton sued D.R. Horton in 2005 for discrimination and breach of contract. D.R. Horton filed a motion to dismiss and compel arbitration, and the trial court denied the motion. In November 2006, a panel of this court conditionally granted D.R. Horton’s petition for writ of mandamus in this lawsuit.[2] The trial court subsequently vacated its order denying D.R. Horton’s motion to dismiss and compel arbitration. D.R. Horton and Hatton submitted to court-ordered binding arbitration. Following arbitration, the trial court entered a final take-nothing judgment in favor of D.R. Horton on December 11, 2008. Hatton timely filed this appeal from the trial court’s final judgment. As she did in her response to D.R. Horton’s petition for writ of mandamus, Hatton argues the arbitration provision contained in the EAF is unenforceable because it is (a) illusory, (b) indefinite, and (c) unconscionable. These are the same legal arguments made and addressed in both our prior opinion in this case and in a similar case, D.R. Horton, Inc. v. Brooks.[3] In these opinions, we determined the arbitration clause at issue is valid and enforceable. Because the legal arguments in this case are the same as those addressed in our prior opinions, these opinions are controlling and we cite the parties to them. We therefore overrule Hatton’s three issues and affirm the trial court’s judgment. /s/ Tracy Christopher, Justice Panel consists of Chief Justice Hedges and Justices Anderson and Christopher. [1] D.R. Horton, Inc. v. Brooks, 207 S.W.3d 862 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding); D.R. Horton, Inc. v. Hatton, Nos. 14-06-00262-CV, 14-06-00284-CV, 2006 WL 3193722, at *1 (Tex. App.—Houston [14th Dist.] Nov. 7, 2006, orig. proceeding) (mem. op.). [2] Hatton, 2006 WL 3193722, at *1. [3] 207 S.W.3d at 867–870. The arbitration clause and other provisions contained in the EAF at issue here are set forth in Brooks; except for minor grammatical differences, the EAF signed by Hatton is the same as that set forth in that opinion. TRIAL COURT'S JUDGMENT AFFIRMED: Opinion by Justice Christopher Panel members: Chief Justice Hedges and Justices Anderson and Christopher. 14-09-00054-CV Brenda Hatton v. D.R. Horton, Inc. [link to pdf version] Appeal from 152nd District Court of Harris County Trial Court Judge: Kenneth Price Wise ORIGINAL MANDAMUS OPINION BY JUSTICE EVA GUZMAN

The enforceability of the arbitration clause contained in D.R. Horton, Inc.'s employee handbook acknowledgment form is again before this Court. In Cause No. 14-06-00262-CV, an interlocutory appeal, and Cause No. 14-06-00284-CV,[1] a petition for writ of mandamus, D.R. Horton seeks relief from the trial court's order denying its motion to compel arbitration pursuant to the arbitration clause.

Brenda Hatton, the appellee and real party in interest in the subject cases, began working for D.R. Horton in June of 1997 and signed its “Employee Acknowledgment Form" (“EAF") in 2001, which contained, among other matters, the arbitration clause at issue here. In 2005, Hatton filed suit against D.R. Horton, asserting a discrimination claim under the Texas Labor Code and a breach of contract claim. D.R. Horton filed a motion to compel arbitration, and the trial court denied the motion.

In the subject cases, D.R. Horton argues that the trial court abused its discretion by denying arbitration because the arbitration clause is valid and covers the parties' dispute. Hatton argues the arbitration provision contained in the EAF is unenforceable because it is illusory, unconscionable, and its terms are too indefinite to form a binding contract. These are the same arguments made and addressed in our opinion issued on November 2, 2006, in D.R. Horton, Inc. v. Brooks, Cause No. 14-06-00099-CV, and In re D.R. Horton, Inc., Cause No. 14-06-00152-CV.[2] In that opinion, we determined the arbitration clause was valid.

We conditionally granted D.R. Horton's petition for a writ of mandamus and dismissed its interlocutory appeal as moot. Because the facts and legal arguments in the subject consolidated cases are the same as those addressed in our November 2, 2006 opinion, that opinion is controlling and we cite the parties to it.

For the reasons stated in our November 2, 2006 opinion, we conclude that the trial court abused its discretion in failing to order Hatton to arbitrate her claims against D.R. Horton pursuant to the arbitration agreement between the parties. Accordingly, we conditionally grant D.R. Horton's petition for writ of mandamus in Cause No. 14-06-00284-CV and direct the trial court to vacate the order denying D.R. Horton's motion to compel and to enter an order compelling the parties to arbitration. The writ will issue only if the trial court fails to comply with this opinion. Having granted full relief under our mandamus jurisdiction, we dismiss as moot D.R. Horton's interlocutory appeal, Cause No. 14-06-00262-CV. See In re D. Wilson Constr. Co., 196 S.W.3d 774, 780 (Tex. 2006) (orig. proceeding).

/s/ Eva M. Guzman, Justice

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed November 7, 2006.

Panel consists of Chief Justice Hedges, and Justices Yates and Guzman.

NOTE: Justice Eva Guzman is now a member of the Texas Supreme Court

Arbitration of Wrongful Termination Claim Ordered: In Re Polymerica, LLC (Tex. Oct. 23, 2009)

TEXAS SUPREME COURT GRANTS EMPLOYER'S PETITION FOR MANDAMUS TO REQUIRE EMPLOYEE TO ARBITRATE HER WRONGFUL TERMINATION CLAIM In Re Polymerica, L.L.C., (Tex. Oct. 23, 2009) (orig. proceeding) Former employee required to arbitrate wrongful termination claim under arbitration agreement signed in connection with operating agreement of her employer with staffing company even though claim accrued after the operating agreement between the two companies had been terminated and the company against whom the wrongful discharge claims was asserted had not signed the dispute resolution plan containing the provision for binding arbitration. The court of appeals below had held that only claims accruing while operating agreement was in force were subject to mandatory arbitration.

═══════════════════════════════════

In re Polymerica, LLC d/b/a Global Enterprises, Inc.

═══════════════════════════════════

PER CURIAM

Polymerica, L.L.C. d/b/a Global Enterprises, Inc. (“Global”) seeks a writ of mandamus ordering the trial court to grant its motion to compel arbitration. Global, an El Paso-based manufacturer of plastics, hired Angelica Soltero in 1998. In 2002, Global contracted with dmDickason Staff Leasing Company (“Dickason”) to manage Global’s human resources department. Soltero signed a Dispute Resolution Plan, which “appl[ies] to any disputes between dmDickason/Global Enterprises and any applicant for employment, employee or former employee, including legal claims such as discrimination, wrongful discharge or harassment.” The Plan includes a four-step process for resolving disputes, the fourth of which requires binding arbitration under the Federal Arbitration Act. The Plan notes that it is “a condition of employment and of continued employment” and that “employment or continued employment after the effective date of this Plan constitutes consent by the Employee to be bound by this Plan.”

Subsequently, Global distributed an employee handbook and required Soltero and all other employees to acknowledge its receipt. The acknowledgment recites that the handbook “takes precedence over, supercedes, and revokes any previous memo, bulletin, policy or procedure issued prior to [July 6, 2003], by Global Enterprises on any subject discussed in the Handbook.” The handbook includes a section on arbitration, which provides, in pertinent part:

All disputes between you and dmDickason/Global shall be resolved exclusively through arbitration under the Federal Arbitration Act. All employees are required to sign a Dispute Resolution Plan Agreement, as a condition of employment, during their new employee orientation on the first day of employment.

dmDickason/Global’s Dispute Resolution Plan and Arbitration Agreement is intended to provide a method for solving problems that is fair, prompt and effective.

. .

Your decision to accept employment with Global, or to continue your current employment after the effective date of the Dispute Resolution Plan, will mean that you have agreed to, and are bound by the Plan. All disputes between you and dmDickason, and/or you and Global shall be resolved exclusively through arbitration under the Federal Arbitration Act, the American Arbitration Association’s National Rules for the Resolution of Employment Disputes, and dmDickason’s dispute resolution plan that is given to all employees during their initial employment orientation with dmDickason.

On December 31, 2005, Global ended its operating agreement with Dickason and resumed full management of its human resources department. Five days later, Global terminated Soltero.

Soltero sued Global under chapter 21 of the Texas Labor Code alleging wrongful termination based on her national origin as well as retaliation for reporting alleged sexual harassment. The trial court denied Global’s motion to compel arbitration. Global sought mandamus relief, which the court of appeals granted in part. 271 S.W.3d 442. The court of appeals held that Soltero’s claims arising before Global and Dickason ended their relationship must be arbitrated, but that those arising after Global and Dickason’s operating agreement ended should not. Id. at 449. Soltero then nonsuited any claim arising before January 1, 2006 and alleged that, because her termination occurred after the Global/Dickason agreement ended, none of her claims were subject to arbitration. The trial court agreed, concluding that “all of [Soltero’s] claims in this suit arise from the wrongful termination occurring after the operating agreement between Global and Dickason ended.” The trial court lifted the previously ordered stay and placed the case on the trial docket. Global asks us to order the trial court to compel arbitration as to all of Soltero’s claims and to stay the proceedings pending arbitration.

Soltero concedes that she signed the Dispute Resolution Plan and the 2003 Handbook, but she argues that the Handbook’s statement revoking prior versions nullifies the Dispute Resolution Plan. That Handbook provision, however, does not cover contracts like the Plan’s arbitration agreement. We also note that the Handbook and the Dispute Resolution Plan were intended to work in tandem. 227 S.W.3d at 448 (“We fail to see how the handbook nullifies the arbitration agreements; rather, it appears to reference them.”); see also J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). If the 2003 Handbook’s discussion of arbitration eliminated the Dispute Resolution Plan, the Handbook’s discussion of—and multiple references to—the Plan would be meaningless. See Davidson, 128 S.W.3d at 229.

Soltero also asserts that the Dispute Resolution Plan is illusory because the 2003 Handbook could be modified at any time. See id. at 230 n.2 (noting that “most courts . . . have held that, if a party retains the unilateral, unrestricted right to terminate the arbitration agreement, it is illusory”). But the Dispute Resolution Plan has its own termination provision, which requires notice to employees and applies prospectively only. Because Global cannot “avoid its promise to arbitrate by amending the provision or terminating it altogether,” In re Halliburton Co., 80 S.W.3d 566, 570 (Tex. 2002), the Dispute Resolution Plan is not illusory.

Next, Soltero contends that because only Dickason, not Global, was a party to the Dispute Resolution Plan, Global may not enforce the Plan’s terms. Global counters that even though it did not sign the Plan, it can enforce Dickason’s agreement with Soltero under the equitable theory of direct-benefits estoppel. We need not address direct-benefits estoppel, however, because both Global and Soltero were parties to the Plan. The Plan notes that it “will apply to any disputes between dmDickason/Global Enterprises and any applicant for employment, employee or former employee.” It also defines “covered dispute” as including any claim, demand, or controversy “between Employee and dmDickason and/or Global Enterprises.” Although the Plan is signed only by Soltero and Dickason, we have never held that the employer must sign the arbitration agreement before it may insist on arbitrating a dispute with its employee. “[N]either the FAA nor Texas law requires that arbitration clauses be signed, so long as they are written and agreed to by the parties.” In re AdvancePCS Health, L.P., 172 S.W.3d 603, 606 n.5 (Tex. 2005) (noting, however, that Texas Arbitration Act requires signatures for contracts of less than $50,000 or personal injury claims); see also In re Macy’s Tex., Inc., 291 S.W.3d 418, 418 (Tex. 2009) (per curiam) (observing that “[t]he FAA contains no requirements for the form or specificity of arbitration agreements except that they be in writing; it does not even require that they be signed”); Halliburton, 80 S.W.3d at 569 (holding arbitration clause was accepted by continued employment). And while the Plan provides that it covers disputes involving former employees of the “company,” defined as “dmDickason Staff Leasing Company, Inc. together with its subsidiaries, parent companies, affiliates, officers, directors, employees, agents, representatives, shareholders and assigns,” it also states that it applies to “any disputes between dmDickason/Global Enterprises and any . . . former employee.” See In re D. Wilson Construction Co., 196 S.W.3d 774, 782 (Tex. 2006) (observing that “we resolve doubts as to the scope of the agreements in favor of coverage”); In re FirstMerit Bank, 52 S.W.3d 749, 753 (noting that “courts must resolve any doubts about an arbitration agreement’s scope in favor of arbitration”).

The court of appeals held that Global could not enforce the arbitration agreements “for those claims arising from the alleged wrongful termination occurring after the operating agreement between Global and Dickason ended.” 271 S.W.3d at 449.

The court relied on In re Neutral Posture, Inc., 135 S.W.3d 725, 730 (Tex. App.—Houston [1st Dist.] 2003, no pet.), to explain why claims post-dating the operating agreement must be tried rather than arbitrated, but we find Neutral Posture to be distinguishable. The arbitration agreement there included a condition stating that the parties must resolve disputes via arbitration only during a set five-year period, and the claim at issue was filed after the expiration of that period. Id. There is no such time limitation in the Dispute Resolution Plan, nor is there a condition that the Global and Dickason relationship must be in existence for either to enforce the Plan. Soltero’s agreement to arbitrate survives the dissolution of that relationship, and the Dispute Resolution Plan explicitly covers former employees like Soltero.

The court of appeals also noted that Global’s former human resources manager, Valerie Scott, “was unaware of any arbitration agreement after the termination of Global’s relationship with Dickason,” and “[s]he agreed that from January 2006 until July 2007, when Global created a new arbitration agreement, there was no arbitration agreement in effect.” 271 S.W.3d at 446-47. But Scott’s testimony is ambiguous on this point. She testified that she “never even thought about [whether the 2002 agreement]” was still in effect after the relationship between Global and Dickason ended. When asked whether Global employees were covered by an arbitration agreement in 2006, she answered that “[t]here was not an arbitration agreement that we — that was created by Global Enterprises” and that she was unaware of any other arbitration agreement that might have applied to Global’s employees. Even if Scott had testified that no arbitration agreement was in effect, her statements could not alter the effect of the unambiguous agreement. See In re Dillard’s Dep’t Stores, Inc., 186 S.W.3d 514, 515 (Tex. 2006) (noting that “[t]he objective intent as expressed in the agreement controls the construction of an unambiguous contract, not a party’s after-the-fact conduct”); Davidson, 128 S.W.3d at 229 (“In construing this agreement, we first determine whether it is possible to enforce the contract as written, without resort to parol evidence.”).

Soltero’s promise to arbitrate includes her claims against Global. Mandamus relief is appropriate when a party is forced to trial despite an enforceable agreement to arbitrate. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex. 2008).

Accordingly, without hearing oral argument, TEX. R. APP. P. 52.8(c), we conditionally grant Global’s petition for writ of mandamus and direct the trial court to compel arbitration as to all of Soltero’s claims and stay the proceedings pending arbitration. We are confident the trial court will comply, and our writ will issue only if it does not.

Opinion Delivered: October 23, 2009

In Re Polymerica, LLC, No. 08-1064 (Tex. Oct. 23, 2009)(per curiam) (arbitration mandamus granted in employment dispute) (terminated employee required to arbitrate wrongful termination claim against her employer even though arb agreement was with staffing company whose relationship with employer had been terminated prior to employee's claim) IN RE POLYMERICA, LLC D/B/A GLOBAL ENTERPRISES, INC.; from El Paso County; 8th district (08-08-00070-CV, 271 SW3d 442, 11-25-08) stay order of February 24, 2009 lifted Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion View Electronic Briefs in IN RE POLYAMERICA, LLC D/B/A GLOBAL ENTERPRISES, INC. OTHER BLOG ENTRIES ON IN RE POLYMERICA, LLC (Tex. Sup. Ct. 2009): Supreme Court of Texas Compels Arbitration of Discrimination and Retaliation Claims By Russell Cawyer (Texas Employment Law Update) Texas Supreme Court Compels Arbitration of Employment Discrimination Claims By Victoria VanBuren (Disputing)

Presumption of Receipt substitutes for proof of delivery of employer's policy document containing arbitration clause

An arbitration agreement does not have to be signed to become effective as conduct after receipt, such as continued employment, may be sufficient to signify acceptance. But what if there is no direct proof of delivery? In this case, the Houston court of appeals panel upholds the enforceability of the employer's dispute resolution plan including arbitration based on the presumption of receipt that was not properly rebutted by the employee. In Re Halliburton (Tex.App.- Houston [1st Dist.] Jul. 2, 2009) (orig. proceeding) FROM THE OPINION: Motion to Compel In July 2008, Halliburton moved to compel arbitration and to dismiss or stay the trial court proceedings. Halliburton argued that O’Beirne accepted the terms and conditions of the DRP twice in writing and by his continued employment with Halliburton after Halliburton mailed a copy of the DRP to its employees in 2001. Halliburton also argued that O’Beirne’s claims fall within the scope of the arbitration agreement because the DRP is broadly written to include “all legal and equitable claims” including “employee benefits or incidents of employment with the company.” Halliburton argued that O’Beirne’s claims for unpaid bonuses and benefits were squarely within the scope of the arbitration agreement. * * * [W]e begin with the most recent version of Halliburton’s DRP relevant to this case, the 2001 DRP, which Halliburton asserts it mailed to O’Beirne. Presumption of Receipt A presumption of receipt arises when a party presents evidence that a document was placed in the United States mail with the proper address and sufficient postage. Southland Life Ins. Co. v. Greenwade, 159 S.W.2d 854, 857 (Tex. 1942); Texaco, Inc. v. Phan, 137 S.W.3d 763, 767 (Tex. App.— Houston [1st Dist.] 2004, no pet.). “The matters of proper addressing, stamping, and mailing may be proved by circumstantial evidence, such as the customary mailing routine of the sender’s business.” Phan, 137 S.W.3d at 767 (citing Cooper v. Hall, 489 S.W.2d 409, 415 (Tex. Civ. App.—Amarillo 1972, writ ref’d n.r.e.)). Testimony that the notice was not received is enough to rebut this presumption, thus creating a fact issue to be resolved by the trial court. Greenwade, 159 S.W.2d at 857–58; Phan, 137 S.W.3d at 767. The presumption of receipt is overcome only when the evidence supporting the contrary inference is conclusive, or so clear, positive, and disinterested that it would be unreasonable not to consider it conclusive. Phan, 137 S.W.3d at 767–68. Here, Halliburton provided uncontroverted evidence that copies of the 2001 DRP materials were sent to O’Beirne in a properly addressed packet, with Halliburton’s return address. In addition, Halliburton provided evidence that they kept track of packets returned to Halliburton by the Post Office as undeliverable and that O’Beirne’s packet was not returned. These uncontroverted facts are circumstantial evidence that proper postage was affixed to O’Beirne’s packet, supporting the presumption of receipt. O’Beirne presented no evidence to the trial court that he did not receive the DRP materials mailed to him in 2001. His affidavit “disputes” that he received the plan materials that Halliburton asserted it provided to him in 2000 when he was hired, but it does not address the materials mailed in 2001. Rather, O’Beirne argues that Halliburton did not establish the presumption of receipt because it did not provide direct evidence of proper postage. Because this can be—and has been—proven by circumstantial evidence, we hold that Halliburton established the presumption that O’Beirne received the 2001 DRP materials. Agreement to Arbitrate The 2001 DRP provided, “Employment or continued employment after the Effective Date of this Plan constitutes consent by both the Employee and the Company to be bound by this Plan, both during the employment and after termination of employment.” The 2001 DRP defines the “effective date” as June 15, 1998, as amended as of August 15, 1999. O’Beirne does not dispute that he was employed by Halliburton after the effective date of the plan. Therefore, O’Beirne accepted the agreement by performance, i.e., his employment. Accordingly, we hold that a valid agreement to arbitrate exists between Halliburton and O’Beirne. Scope of the Agreement We next consider whether O’Beirne’s claims fall within the scope of the agreement to arbitrate. The 2001 DRP aterials state, “All Disputes not otherwise settled by the Parties shall be finally and conclusively resolved under this Plan and the Rules.” “Dispute” is defined as: “all legal and equitable claims, demands, and controversies, of whatever nature or kind, whether in contract, tort, under statute or regulation, or some other law . . . including , but not limited to, any matters with respect to . . . (2) the employment . . . of an Employee, including the terms, conditions, or termination of such employment . . . [or] (3) employee benefits or incidents of employment with the Company. . . .” O’Beirne has sued Halliburton for bonuses and other monies he claims were due to him upon his retirement from Halliburton. Because his claims deal with his employment, termination of employment, and benefits of such employment, we hold that O’Beirne’s claims are within the scope of the arbitration agreement. Conclusion Because O’Beirne’s claims are within the scope of a valid arbitration agreement, we hold that the trial court abused its discretion by denying Halliburton’s motion to compel arbitration. See In re Tenet Healthcare, Ltd., 84 S.W.3d at 765 (“A court has no discretion and must compel arbitration if the answer to both questions is affirmative.”) We conditionally grant relator’s petition for writ of mandamus, and we direct the trial court to vacate its February 9, 2009 order and grant relator’s motion to compel arbitration. We are confident the trial court will promptly comply, and our writ will issue only if it does not. We vacate the temporary stay granted in this case on March 10, 2009. In re Halliburton Co. (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)(Sharp) (arbitration mandamus) (FAA: trial court should have granted motion to compel arbitration in employment dispute) GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Sharp Before Chief Justice Radack, Justices Taft and Sharp 01-09-00150-CV In re Halliburton Company Appeal from 133rd District Court of Harris County Trial Court Judge: Jaclanel M. McFarland

In Re Macy's Texas, Inc. (Tex. 2009)

In this case the Texas Supreme Court held, in an opinion issued June 26, that an employee must arbitrate her claim against her employer for personal injuries sustained at work even though the acknowledgment of the arbitration agreement was not signed until after the employee's injury occurred. The court did not mention federal preemption in its short per curiam opinion. The Court did not find a discrepancy in the identification of the employer significant because the arbitration agreement referred to “your particular employer.” The employer had only offered a conclusory affidavit in an effort to establish the relationship between the different corporate entities in the case. The lower appellate court, by contrast, had denied mandamus relief for that reason. EXCERPTS FROM THE SUPREME COURT'S PER CURIAM OPINION: The Plan’s effective date predated her injury, even though her Acknowledgment did not. As it is undisputed that the Plan adopted the Federal Arbitration Act, the limitations on such post-injury agreements in the Texas Act do not apply. See Tex. Civ. Prac. & Rem. Code § 171.002(c) (prohibiting post-injury arbitration agreements unless signed by each party’s attorney). * * * [T]he Plan itself stated that “the Company” would mean “your particular employer.” This definition is certainly nonspecific, but it serves to avoid the kind of disputes about corporate divisions and affiliates that Tomsic tries to raise here. The FAA contains no requirements for the form or specificity of arbitration agreements except that they be in writing; it does not even require that they be signed. See 9 U.S.C. § 2; Seawright v. Am. Gen. Fin. Servs., Inc., 507 F.3d 967, 978 (6th Cir. 2007) (citing cases from the 2nd, 5th, 7th, and 10th Circuits). But in this case the defendant’s affidavit establishes that the Acknowledgment was signed “For the Company” by an assistant manager at the Macy’s store where Tomsic worked. Tomsic offers no explanation why she would agree with anyone other than her employer on a health-benefits plan or arbitration for on-the-job injuries. Her suit asserts failure to provide proper equipment and a safe workplace — both nondelegable duties owed by her employer. See Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 215 (Tex. 2008). As Tomsic agreed to arbitrate with her employer and purported to sue her employer, she cannot avoid arbitration by raising factual disputes about her employer’s correct legal name. Accordingly, without hearing oral argument, Tex. R. App. P. 52.8(c), we conditionally grant the petition for writ of mandamus and direct the trial court to enter an order compelling arbitration. We are confident the trial court will comply, and our writ will issue only if it does not. CASE DETAILS AND LINKS TO OPINIONS AND DOCKET SHEETS: IN RE MACY'S TEXAS, INC.; No.08-0584 (Tex. Jun. 26, 2009) (per curiam) (arbitration mandamus granted) (motion to compel arbitration should have been granted) (dispute over correct identification of employer in connection with arbitration agreement under the FAA) (conclusory affidavit as to entity name and identity) IN RE MACY'S TEXAS, INC.; from Bexar County; 4th district (04-08-00469-CV, ___ SW3d ___, [per curiam opinion of the San Antonio Court of Appeals denying mandamus relief] 07-23-08) stay order issued October 10, 2008 lifted. Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Texas Supreme Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion See Electronic Briefs in IN RE MACY'S TEXAS, INC. (Tex. 2009) COMMENTARY ON THIS CASE BY OTHERS: Texas Supreme Court Rules on Arbitration of Tort Claims in Employment Contract (Disputing blog by Karl Bayer)("The Supreme Court of Texas held that a post-injury arbitration acknowledgment agreement is valid and compelled arbitration of tort claims within the context of an employment contract. . . . Because this case was decided under the Federal Arbitration Act, and not under the Texas Arbitration Act, post-injury arbitration agreements don’t have to be signed by each party’s attorneys.") ID of Party to Arbitration Pact Doesn't Matter, Texas Supremes Hold (Blawgletter® Barry Barnett)("Something bothers Blawgletter about the decision. It looks sloppy. The defect in our view didn't involve a question of an "employer's correct legal name." It instead concerned a basic failure to agree on who the contract binds. The case should have turned on whether the actual defendant also in fact employed the plaintiff. We concede that the court might have decided the mandamus under the doctrine of equitable estoppel, which allows non-signatories of arbitration agreements to enforce them. But it didn't. Sloppy.") RELATED TERMS: FAA, arbitration in the employment context, arbitration of personal injury claims against employer, post-injury waiver of right to litigate in favor of arbitration, arbitration compelled by mandamus, Texas Supreme Court Arbitration Law Decisions, conclusory affidavits

Aspen Technology, Inc. v. Shasha (Tex.App. - Houston March 2008)

An employer and its employee entered into two arbitration agreements - one in which they did not specify the arbitration rules, arbitration site, or number of arbitrators and a subsequent agreement in which they specified a three-arbitrator panel in Boston, Massachusetts, in accordance with the commercial arbitration rules of the American Arbitration Association. The trial court compelled arbitration in Houston, Texas, before a single arbitrator under the first agreement but refused to compel arbitration under the second agreement, impliedly ruling that the second agreement is illusory and substantively unconscionable. The Houston Court of Appeals concludes that mandamus relief is warranted and directs the trial court to vacate its orders compelling arbitration under the first agreement and to issue an order compelling arbitration under the second agreement. Given this ruling, the employer's interlocutory appeal is rendered moot. Aspen Technology, Inc. vs. Abe Shasha , In re Aspen Technology, Inc. (Tex.App.- Houston [1st Dist.] Mar. 27, 2008) (Opinion by Justice Kem Thompson Frost) (interlocutory appeal dismissed, arbitration mandamus granted) Appellate court: First Court of Appeals in Houston --> See more March 2008 Opinions Cause Nos: No. 14-07-00303-CV , No. 14-07-00469-CV Appeal from 165th District Court of Harris County, Texas (Houston) Trial Court Judge: District Court Judge Hon. Elizabeth Ray O P I N I O N An employer and its employee entered into two arbitration agreements C one in which they did not specify the arbitration rules, arbitration site, or number of arbitrators and a subsequent agreement in which they specified a three-arbitrator panel in Boston, Massachusetts, in accordance with the commercial arbitration rules of the American Arbitration Association. The trial court compelled arbitration in Houston, Texas, before a single arbitrator under the first agreement but refused to compel arbitration under the second agreement, impliedly ruling that the second agreement is illusory and substantively unconscionable. We conclude mandamus relief is warranted. For the reasons explained below, we direct the trial court to vacate its orders compelling arbitration under the first agreement and to issue an order compelling arbitration under the second agreement. Given this ruling, the employer's interlocutory appeal is rendered moot. I. Factual and Procedural Background Appellee/real party in interest Abe Shasha began his employment in December 2001, with the predecessor of appellant/relator Aspen Technology, Inc. At that time, Shasha signed an agreement regarding his employment, in which he and Aspen’s predecessor agreed to arbitrate any and all disputes or controversies that might arise between Shasha and Aspen’s predecessor, including without limitation employment disputes (hereinafter “2001 Agreement”). On October 28, 2005, Shasha signed an agreement regarding his incentive compensation for Aspen fiscal year 2006 (hereinafter “2006 Agreement”). In the 2006 Agreement, Shasha agreed that any legal action against Aspen would be settled exclusively by arbitration before a three-member panel in Boston, Massachusetts in accordance with the commercial arbitration rules of the American Arbitration Association (hereinafter “AAA”). Early in 2006, Shasha notified Aspen that he had a dispute regarding his commissions. In May 2006, Shasha resigned from his position with Aspen and soon thereafter filed suit against Aspen in the trial court below asserting contract and tort claims. Aspen filed a motion to compel arbitration, relying on both the 2001 Agreement and the 2006 Agreement. In response, Shasha admitted that he executed both the 2001 Agreement and the 2006 Agreement. Shasha argued that the arbitration provision in the 2006 Agreement replaced the arbitration provision in the 2001 Agreement. Shasha did not dispute that his claims fall within the scope of the arbitration clause in the 2006 Agreement; rather, Shasha asserted that this arbitration clause is unenforceable because (1) the clause is illusory given that Aspen allegedly retains a unilateral, unrestricted right to terminate this arbitration agreement; and (2) the clause imposes such exorbitant costs on Shasha that it is substantively unconscionable. The trial court granted Aspen’s motion to compel, ordered all claims to arbitration, and stayed the case pending the conclusion of the arbitration. However, the trial court’s first order did not specify the site for the arbitration or the agreement under which the trial court ordered the parties to arbitrate the claims. Confusion arose as to whether the trial court had ordered arbitration under the 2006 Agreement. Aspen asserted that the trial court had ordered the parties to arbitrate the claims in Boston, Massachusetts, under the 2006 Agreement. Shasha filed a motion for reconsideration and clarification. In this motion, Shasha stated that the trial court’s order was ambiguous as to whether the trial court had compelled the parties to arbitrate the claims under the 2001 Agreement or under the 2006 Agreement. Shasha asserted that he had no issue with the court to the extent it intended to compel arbitration under the 2001 Agreement. However, to the extent the trial court had ordered arbitration under the 2006 Agreement, Shasha moved the court to reconsider its rejection of the two grounds upon which Shasha had asserted that this arbitration agreement is unenforceable. Shasha requested the trial court to order the parties to arbitration under the 2001 Agreement in Houston, Texas, with a single arbitrator. Aspen filed a response in opposition in which it argued that no clarification was necessary because the trial court already had ordered the parties to arbitrate in Boston, Massachusetts, under the 2006 Agreement. Aspen again presented argument in support of its position that there is no merit in Shasha’s two objections to the enforceability of the arbitration clause in the 2006 Agreement. Aspen asserted that the Federal Arbitration Act (“Federal Act”) and the Texas Arbitration Act (“Texas Act”) both mandate that Shasha’s claims be arbitrated in Boston, Massachusetts before a panel of three arbitrators pursuant to the commercial arbitration rules of the AAA (“Commercial Rules”) and that the proceedings in the trial court be stayed pending completion of arbitration. Aspen submitted to the trial court a proposed order denying Shasha’s motion. In this proposed order, the trial court would compel arbitration in Boston, Massachusetts, before a panel of three arbitrators pursuant to the Commercial Rules and stay the proceedings in the trial court until the conclusion of the arbitration. Instead of signing this proposed order, the trial court signed an order in which it granted Shasha’s motion and compelled arbitration in Houston, Texas, with a single arbitrator under the 2001 Agreement. Aspen has appealed this order under section 171.098(a)(1) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. ' 171.098(a)(1) (Vernon 2005). Aspen also filed a petition for writ of mandamus. This court has consolidated these two proceedings. II. Standard of Review The Federal Act applies to an arbitration agreement in any contract involving interstate commerce, to the full extent of the Commerce Clause of the United States Constitution. See 9 U. S. C. ' 2 (1999); Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 277-81, 115 S. Ct. 834, 839-41, 130 L. Ed. 2d 753 (1995); In re L&L Kempwood Assocs., 9 S.W.3d 125, 127 (Tex. 2006). Shasha does not dispute that the Federal Act applies. The 2001 Agreement and the 2006 Agreement both involve interstate commerce, and therefore, the Federal Act applies. Mandamus relief is available when the trial court clearly abuses its discretion by erroneously denying a party its contracted for arbitration rights under the Federal Act. See In re D. Wilson Const. Co., 196 S.W.3d 774, 780-81 (Tex. 2006) (orig. proceeding); In re Igloo Prods. Corp., 238 S.W.3d 574, 577 (Tex. App.- Houston [14th Dist.] 2007, orig. proceeding [mand. denied]). Therefore, Aspen’s right to mandamus relief hinges on whether the trial court erred by refusing to compel arbitration under the 2006 Agreement.[1] On mandamus review of factual issues, a trial court will be held to have abused its discretion only if the party requesting mandamus relief establishes that the trial court reasonably could have reached only one decision, and not the decision the trial court made. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Mandamus review of issues of law is less deferential. A trial court abuses its discretion if it clearly fails to analyze the law correctly or apply the law to the facts. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005). In construing the 2006 Agreement, our primary concern is to ascertain and give effect to the intentions of the parties as expressed in the contract. Kelley Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998). To ascertain the parties’ true intentions, we examine the entire agreement in an effort to harmonize and give effect to all provisions of the contract so that none will be rendered meaningless. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex. 1999). Whether a contract is ambiguous is a question of law for the court. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation. Id. However, when a written contract is worded such that it can be given a certain or definite legal meaning or interpretation, it is unambiguous, and the court construes it as a matter of law. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003). III. Issues and Analysis A. Does this court lack mandamus jurisdiction because the trial court did not deny a motion to compel arbitration? Shasha first argues that this court lacks jurisdiction to consider Aspen’s mandamus petition because the trial court allegedly did not deny Aspen’s application to compel arbitration. According to Shasha, Aspen moved to compel arbitration under either the 2001 Agreement or the 2006 Agreement, and the trial court granted this request by compelling arbitration under the 2001 Agreement. Though Aspen based its motion to compel on both agreements, in response to Shasha’s motion for reconsideration and clarification, Aspen relied on the 2006 Agreement and requested the trial court to order arbitration of Shasha’s claims in Boston, before a panel of three arbitrators pursuant to the Commercial Rules. The trial court refused to do so, and instead, it ordered the parties to arbitrate the claims in Houston, with a single arbitrator under the 2001 Agreement. Mandamus relief is available if a trial court abuses its discretion by erroneously denying a party its contracted for arbitration rights under the Federal Act. See In re D. Wilson Const. Co., 196 S.W.3d 774, 780-81. Impliedly finding that the arbitration clause in the 2006 Agreement is illusory and substantively unconscionable, the trial court denied Aspen its contracted for arbitration rights under the 2006 Agreement, which is governed by the Federal Act. Therefore, this court has mandamus jurisdiction to consider whether the trial court clearly abused its discretion in so ruling. See In re D. Wilson Const. Co., 196 S.W.3d 774, 780-81. B. Did the trial court err by concluding that the arbitration clause in the 2006 Agreement is illusory? Shasha asserted in the trial court that the arbitration clause in the 2006 Agreement is illusory because Aspen allegedly retains a unilateral, unrestricted right to terminate this arbitration agreement. If one party to an arbitration agreement retains such a right, then the arbitration agreement is illusory and unenforceable. See In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 677 (Tex. 2006). Shasha asserts that Aspen retains a unilateral, unrestricted right to terminate the arbitration provision in the 2006 Agreement based on the following language in that agreement: The incentive compensation plan administrator (Vice President of Worldwide Sales Operations) is responsible for the interpretation of the plan. If the meaning or interpretation of the plan wording requires clarification after consideration of all the facts, the Senior Vice President, Worldwide Sales and Business Development (SVP Sales) or his/her designee(s), if any[,] will issue a written ruling, which will be final. In addition, the SVP Sales will be responsible for the periodic review of the plan and may make revisions from time to time. (emphasis added). The title of the 2006 Agreement is “Aspen Technology, Inc. FY 2006 Incentive Compensation Plan Global Account Manager (GAM).” In the 2006 Agreement, there is no definition of the term “plan.” Shasha asserts that, under the above language, the SVP Sales may make revisions to the 2006 Agreement from time to time. Presuming that the above language refers to the 2006 Agreement as “the plan,” and presuming that the SVP Sales may review the 2006 Agreement and make revisions from time to time, this is not equivalent to stating that the SVP Sales has a unilateral, unrestricted right to terminate the arbitration provision in the 2006 Agreement. Under the 2006 Agreement, “[a]ny additional terms or conditions, or verbal or written agreements between [Shasha] and [Aspen] will not apply unless explicitly agreed to and approved in a signed writing by both the SVP Sales and [Shasha].” We conclude that, under the unambiguous language of the 2006 Agreement, Aspen does not retain a unilateral, unrestricted right to modify or terminate the arbitration provision in that agreement; therefore, that arbitration provision, as a matter of law, is not illusory. See In re Dillard Dept. Stores, Inc., 186 S.W.3d 514, 516 (Tex. 2006) (holding that arbitration agreement did not give employer unilateral, unrestricted right to modify the arbitration agreement). The cases on which Shasha relies are not on point. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 228B30 (Tex. 2003) (concluding that it was unclear whether employer retained unilateral right to terminate arbitration agreement without notice in case in which agreement stated that the employer “reserves the right to unilaterally abolish or modify any personnel policy without prior notice”); In re C & H News Co., 133 S.W.3d 642, 646 (Tex. App.- Corpus Christi 2003, orig. proceeding) (concluding agreement was illusory because it contained provision giving employer the ability to modify or delete provisions as the employer deems appropriate, with or without prior notification to employees); Tenet Healthcare Ltd. v. Cooper, 960 S.W.2d 386, 386-88 (Tex. App.- Houston [14th Dist.] 1998, pet. dism’d w.o.j.) (holding arbitration agreement contained in employee handbook was not supported by consideration, in case in which handbook stated that (1) it was not intended to constitute a legal contract with any employee because that could only occur with a written agreement executed by a facility executive director and (2) the employer reserved the right to amend or rescind any provision of the handbook as it deemed appropriate in its sole and absolute discretion). Therefore, the trial court clearly abused its discretion to the extent it concluded that the arbitration clause in the 2006 Agreement is illusory. C. Did the trial court err by concluding that the arbitration clause in the 2006 Agreement is substantively unconscionable? Shasha asserted in the trial court that the arbitration clause in the 2006 Agreement imposes such exorbitant costs on him that it is substantively unconscionable. Under certain circumstances, arbitration costs could be so high that they preclude a litigant from effectively vindicating his rights through arbitration. See Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 90-92, 121 S. Ct. 513, 522-23, 148 L.Ed.2d 373 (2000). A party seeking to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive bears the burden of providing specific evidence showing a likelihood that he would incur excessive arbitration costs. See Green Tree Fin. Corp., 531 U.S. at 90-92, 121 S. Ct. at 522-23; In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex. 2007); In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001); TMI, Inc. v. Brooks, 225 S.W.3d 783, 796 (Tex. App.- Houston [14th Dist.] 2007, pet. denied). The 2006 Agreement is silent as to arbitration costs. In the trial court Shasha offered an affidavit from one of his lawyers. In this affidavit, Shasha’s counsel testifies, in pertinent part, to the following: ● Based on his personal knowledge of the Commercial Rules and the AAA employment arbitration rules (“Employment Rules”), claims arbitrated under the Commercial Rules are significantly more costly to the employee/claimant than claims arbitrated under the Employment Rules. This is because under the Employment Rules, the employee/claimant is only responsible for a filing fee of $50-150; whereas under the Commercial Rules, the employee/claimant is responsible for the filing fee, the case service fee, and one-half of all the arbitrator fees unless the arbitration agreement states otherwise. ● The AAA’s filing fee for this case would be $4,250, and the AAA case service fee would be $1,750. The AAA administration fee would be $325. Although arbitrator fees vary for each arbitrator, a “median estimate” is $305.50 per hour for each arbitrator based on ten arbitrator resumes for the Boston area from the AAA website. A conservative estimate of total arbitrator fees based on four days of work per arbitrator is $24,000 (32 hours x $250/hour per arbitrator). ● Shasha’s air fare and hotel costs for an arbitration in Boston would be at least $2,700. Presuming that arbitrations under the Commercial Rules are significantly more costly than arbitrations under the Employment Rules, this testimony alone does not provide specific evidence as to Shasha’s likely costs to arbitrate under the 2006 Agreement. Though Shasha’s counsel provides projected fees for filing with the AAA, AAA case service, and AAA administration, this projection is based on the premise that the AAA would administer the arbitration.[2] However, the arbitration provision in the 2006 Agreement does not require that the AAA conduct or administer the arbitration; rather the provision states that arbitration shall be Ain accordance with the [Commercial Rules].” Under this language, the AAA may administer the arbitration, but the parties are not required to have the arbitration administered by the AAA. See TMI, Inc., 225 S.W.3d at 797. Although the party seeking to compel arbitration in TMI, Inc. presented evidence that arbitration under the same arbitration provision was available by a non-AAA arbitrator at a cost significantly lower that the costs of a AAA arbitration, such proof is not necessary for Shasha to be required to make a factual showing that the AAA would administer the arbitration. See Green Tree Fin. Corp., 531 U.S. at 90 n.6, 121 S. Ct. at 522 n.6 (concluding that party asserting substantive unconscionability could not carry her burden of proof based on AAA fees unless she, made a factual showing, among other things, that the AAA would administer the arbitration). As to arbitrator fees, again, Shasha’s projected fees appear to be based on fees charged by AAA arbitrators. In addition, Shasha’s counsel testifies that, under the Commercial Rules, absent agreement by the parties, Shasha must pay half of the arbitrator fees. However, under the Commercial Rules attached to counsel’s affidavit, the arbitration panel in its final award shall apportion the arbitration fees, expenses, and compensation among the parties in such amounts as the panel determines is appropriate. We conclude that the evidence is legally insufficient to support the trial court’s implied finding that Shasha satisfied his burden of providing specific evidence showing a likelihood that he would be denied access to arbitration based on excessive arbitration costs. See Green Tree Fin. Corp., 531 U.S. at 90-92, 121 S. Ct. at 522-23; In re U.S. Home Corp., 236 S.W.3d at 764; In re FirstMerit Bank, N.A., 52 S.W.3d at 756-57; TMI, Inc., 225 S.W.3d at 796. On the record before it, the only finding the trial court could have made was that Shasha did not satisfy this burden. By impliedly ruling to the contrary, the trial court clearly abused its discretion. In addition, even presuming that the AAA would administer the arbitration and that the arbitration costs and fees would be allocated equally by the arbitration panel, Shasha’s counsel projected aggregate costs and fees of $30,325, which would make Shasha’s portion $15,162.50. Presuming that the extra expense of traveling to Boston for the arbitration is $2,700 (the figure stated in the affidavit of Shasha’s counsel) the total financial burden on Shasha would be $17,862.50. However, Shasha is asserting a claim of between $300,000 and $500,000, and Shasha’s base salary, without commissions, when he entered into the 2006 Agreement was $120,000. Though Shasha provided his own affidavit, in which he states that the costs of pursuing his claim through arbitration in Boston under the 2006 Agreement would be extraordinary, oppressive, unaffordable, and would deprive him of the opportunity to litigate his claim, these conclusory statements are legally insufficient. See, e.g., Green Tree Fin. Corp., 531 U.S. at 90 n.6, 121 S. Ct. at 522 n.6 (concluding that party’s unsupported statement that she did not have the resources to pay the high costs of arbitration was insufficient). Shasha does state that he is currently paying for the university studies of his three children and that since he stopped working at Aspen he has been unable to find “equivalent fixed income work.” However, we determine substantive unconscionability based on the circumstances existing when the parties entered into the contract in October 2005, and Shasha provided no evidence as to his finances or ability to pay $17,862.50 at this time.[3] See In re FirstMerit Bank, N.A., 52 S.W.3d at 757. Under the applicable standard of review, we conclude that the trial court clearly abused its discretion by impliedly ruling that the arbitration clause in the 2006 Agreement is substantively unconscionable.[4] IV. Conclusion The Federal Act governs the arbitration clause in the 2006 Agreement. Therefore, this court has mandamus jurisdiction to consider whether the trial court erred in denying Aspen its contracted for arbitration rights under the 2006 Agreement. The trial court clearly abused its discretion (1) by impliedly finding that the arbitration clause in the 2006 Agreement is illusory; (2) by impliedly finding that the clause is substantively unconscionable; and (3) by refusing to order the parties to arbitrate the claims under the 2006 Agreement. Accordingly, we conditionally grant a writ of mandamus directing the trial court to vacate its orders compelling arbitration under the 2001 Agreement and to issue an order (1) compelling arbitration under the 2006 Agreement before a three-arbitrator panel in Boston, Massachusetts, in accordance with the Commercial Rules and (2) staying the proceedings in the trial court pending completion of arbitration. We are confident the respected trial judge will comply with this opinion. Only in the unlikely event she fails to do so will the writ issue. Because we have granted this mandamus relief, we dismiss Aspen’s interlocutory appeal as moot. /s/ Kem Thompson Frost Justice Judgment rendered and Opinion filed March 27, 2008. Panel consists of Chief Justice Hedges and Justices Anderson and Frost. [1] In 1992, addressing whether a party is entitled to mandamus relief for wrongful denial of its arbitration rights under an agreement subject to the Federal Act, the Texas Supreme Court concluded that the Texas Act 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 Federal Act. See In re D. Wilson Const. Co., 196 S.W.3d 774, 778-80 (Tex. 2006). It might appear that Aspen is not entitled to mandamus relief in this case because the Federal Act governs the Agreement and, under In re D. Wilson Const. Co., Aspen has 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 relief remains available when a party is erroneously denied its contracted‑for arbitration rights under the Federal Act. 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 Aspen. [2] Shasha's counsel attaches a copy of the Commercial Rules and the fee schedule for arbitrations conducted by the AAA, but the AAA fee schedule is not part of the Commercial Rules. [3] In any event, Shasha did not provide specific evidence in his affidavit that would prove his present ability to pay this amount. [4] Shasha relies on In re Luna, 175 S.W.3d 315, 319 (Tex. App.- Houston [1st Dist.] 2004, orig. proceeding [mand. pending]). We are not bound by In re Luna, and, in any event, in that case, there was evidence establishing that arbitration would force the former employee to pay fees that amounted to one-half of his annual compensation. See In re Luna, 175 S.W.3d 315, 321 (Tex. App.- Houston [1st Dist.] 2004, orig. proceeding [mand. pending]). Therefore, In re Luna is not on point.