Stripes LLC v. Hazzem Mrayyan
Opinion
ACCEPTED 13-15-00246-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 7/6/2015 4:51:05 PM CECILE FOY GSANGER CLERK
NO. 13-15-00246-CV
FILED IN 13th COURT OF APPEALS IN THE COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS FOR THE THIRTEENTH DISTRICT OF TEXAS 7/6/2015 4:51:05 PM AT CORPUS CHRISTI/EDINBURG, TEXAS CECILE FOY GSANGER Clerk
Stripes LLC, Appellant/Defendant, v.
Hazem Mrayyan, Appellee/Plaintiff.
On Appeal from County Court at Law Number One of Nueces County, Texas The Honorable Robert J. Vargas, Judge Presiding
APPELLANT’S BRIEF
Oral Argument Requested
Gary D. Sarles State Bar No. 17651100 O. Paul Dunagan State Bar No. 06202700 SARLES & OUIMET 900 Jackson Street , Suite 370 Dallas, Texas 75202 Telephone: (214) 573-6300 Facsimile: (214) 573-6306 gsarles@sarleslaw.com dunagan@sarleslaw.com
ATTORNEYS FOR APPELLANT IDENTITY OF PARTIES AND COUNSEL
Appellant: Stripes LLC Gary D. Sarles State Bar No. 17651100 O. Paul Dunagan State Bar No. 06202700 SARLES & OUIMET 370 Founders Square 900 Jackson Street Dallas, Texas 75202 Telephone: 214.573.6300 Facsimile: 214.573.6306 gsarles@sarleslaw.com dunagan@sarleslaw.com Appellee: Hazem Mrayyan Rudy Gonzales, Jr. State Bar No. 08121700 Todd A. Hunter, Jr. State Bar No. 24087774 Marion M. Reilly State Bar No. 24079195 Hilliard Munoz Gonzales LLP 719 S. Shoreline Boulevard, Suite 500 Corpus Christi, Texas 78401 Telephone: 361-882-1612 Facsimile: 361-882-3015 rudyg@hmglawfirm.com kimberly@hmglawfirm.com todd@hmglawfirm.com marion@hmglawfirm.com
David T. Burkett State Bar No. 03410500 The Burkett Law Firm 538 S. Tancahua Corpus Christi, Texas 78401 Telephone: 361-882-8822 Facsimile: 361-882-0733 olivia@theburkettlawfirm.com i TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ....................................................... i
TABLE OF CONTENTS ..................................................................................... ii
INDEX OF AUTHORITIES ............................................................................... vi
STATEMENT OF THE CASE ......................................................................... xiii
STATEMENT REGARDING ORAL ARGUMENT ..................................... xiv
ISSUES PRESENTED ........................................................................................ xv
1. Whether the Trial Court abused its discretion by enjoining Stripes and the DSI Arbitration?
2. Whether the Trial Court abused its discretion by extending the injunction against Stripes and the DSI Arbitration?
3. Whether Plaintiff’s applications for injunctive relief and the Trial Court’s temporary injunction orders are void for having violated the stay imposed by Section 171.025 of the Texas Civil Practice and Remedies Code and formalized in the Trial Court’s December 2, 2015 Agreed Stay Order?
4. Whether Plaintiff’s applications for a temporary injunction were properly verified and properly before the Trial Court?
5. Whether Plaintiff failed to plead and prove a cause of action?
6. Whether the temporary injunction orders improperly destroy rather than preserve the status quo?
7. Whether Plaintiff established imminent, irreparable harm?
A. Whether the Trial Court has the right to decide arbitrability when the Election And Arbitration Agreement and the DSI Rules provide that the DSI arbitrator is to decide all arbitrability disputes and challenges? B. Whether Plaintiff waived any objection to the DSI arbitrator’s jurisdiction? ii 8. Whether Plaintiff proved a probable right to the injunctive relief sought?
A. Whether Plaintiff proved that the courts have the right to decide arbitrability disputes under the Election And Arbitration Agreement? B. Whether Plaintiff proved that he has the right to trial by jury? 1. Whether Plaintiff proved the Election And Arbitration Agreement is unenforceable? 2. Whether Plaintiff ratified the Election And Arbitration Agreement? 3. Whether the Agreed Stay Order independently obligates Plaintiff to arbitrate as a Rule 11 agreement?
9. Whether Stripes intentionally, unequivocally waived its arbitration rights?
ABBREVIATIONS AND RECORD REFERENCES ..................................... xiv
STATEMENT OF FACTS ..................................................................................... 1
The Mrayyan Brothers. .......................................................................................... 1
The Election And Arbitration Agreement and ERISA Plan. ................................. 3
Plaintiff Accepted the Terms of the Election And Arbitration Agreement ........... 5
Plaintiff’s March 27, 2013 On-the-Job Injury at Stripes ....................................... 7
Payments by the Plan. ............................................................................................ 7
Plaintiff’s Counsel’s Knowledge of the Plan’s Payments. .................................... 8
Stripes Added to this Lawsuit. ............................................................................... 10
The December 2, 2014 Agreed Stay Order ........................................................... 11
Plaintiff’s March 6 and 19, 2015 Demands for Arbitration. ................................. 12
The Plan’s Plea in Intervention .............................................................................. 13
The Plan’s Questioning of Dr. Snook. ................................................................... 15
iii The DSI Arbitration ............................................................................................... 16
Plaintiff’s Applications to Enjoin the DSI Arbitration .......................................... 17
Stripes’ Filings in this Court .................................................................................. 18
SUMMARY OF THE ARGUMENT .................................................................. 20
ARGUMENT ......................................................................................................... 26
I. PLAINTIFF’S APPLICATIONS FOR INJUNCTIVE RELIEF AND THE ORDERS GRANTING IT ARE ALL VOID. ..................................... 26
II. IN ADDITION TO BEING VOID, PLAINTIFF’S FIRST AMENDED APPLICATION WAS ALSO NOT PROPERLY VERIFIED, AND PLAINTIFF’S VERIFIED FIFTH AMENDED PETITION WAS NOT PROPERLY BEFORE THE TRIAL COURT. ............................................ 28
III. PLAINTIFF FAILED TO PLEAD AND PROVE A CAUSE OF ACTION ................................................................................................. 32
IV. THE TEMPORARY INJUNCTION DESTROYED THE STATUS QUO ..................................................................................... 38
V. PLAINTIFF FAILED TO ESTABLISH IMMINENT, IRREPARABLE HARM. ......................................................................................................... 43
A. Plaintiff has no right to have the Trial Court decide arbitrability; Arbitrator Black decides all arbitrability disputes. ................................ 44
B. Plaintiff has waived any objection to Arbitrator Black’s jurisdiction. . 48
VI. PLAINTIFF FAILED TO PROVE A PROBABLE RIGHT TO THE INJUNCTIVE RELIEF SOUGHT. .............................................................. 51
A. Plaintiff failed to prove that the courts have the right to decide arbitrability disputes. ............................................................................ 51
B. Plaintiff failed to prove that he has the right to trial by jury. ............... 52
iv 1. The Election And Arbitration Agreement is enforceable. ............53
2.
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ACCEPTED 13-15-00246-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 7/6/2015 4:51:05 PM CECILE FOY GSANGER CLERK
NO. 13-15-00246-CV
FILED IN 13th COURT OF APPEALS IN THE COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS FOR THE THIRTEENTH DISTRICT OF TEXAS 7/6/2015 4:51:05 PM AT CORPUS CHRISTI/EDINBURG, TEXAS CECILE FOY GSANGER Clerk
Stripes LLC, Appellant/Defendant, v.
Hazem Mrayyan, Appellee/Plaintiff.
On Appeal from County Court at Law Number One of Nueces County, Texas The Honorable Robert J. Vargas, Judge Presiding
APPELLANT’S BRIEF
Oral Argument Requested
Gary D. Sarles State Bar No. 17651100 O. Paul Dunagan State Bar No. 06202700 SARLES & OUIMET 900 Jackson Street , Suite 370 Dallas, Texas 75202 Telephone: (214) 573-6300 Facsimile: (214) 573-6306 gsarles@sarleslaw.com dunagan@sarleslaw.com
ATTORNEYS FOR APPELLANT IDENTITY OF PARTIES AND COUNSEL
Appellant: Stripes LLC Gary D. Sarles State Bar No. 17651100 O. Paul Dunagan State Bar No. 06202700 SARLES & OUIMET 370 Founders Square 900 Jackson Street Dallas, Texas 75202 Telephone: 214.573.6300 Facsimile: 214.573.6306 gsarles@sarleslaw.com dunagan@sarleslaw.com Appellee: Hazem Mrayyan Rudy Gonzales, Jr. State Bar No. 08121700 Todd A. Hunter, Jr. State Bar No. 24087774 Marion M. Reilly State Bar No. 24079195 Hilliard Munoz Gonzales LLP 719 S. Shoreline Boulevard, Suite 500 Corpus Christi, Texas 78401 Telephone: 361-882-1612 Facsimile: 361-882-3015 rudyg@hmglawfirm.com kimberly@hmglawfirm.com todd@hmglawfirm.com marion@hmglawfirm.com
David T. Burkett State Bar No. 03410500 The Burkett Law Firm 538 S. Tancahua Corpus Christi, Texas 78401 Telephone: 361-882-8822 Facsimile: 361-882-0733 olivia@theburkettlawfirm.com i TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ....................................................... i
TABLE OF CONTENTS ..................................................................................... ii
INDEX OF AUTHORITIES ............................................................................... vi
STATEMENT OF THE CASE ......................................................................... xiii
STATEMENT REGARDING ORAL ARGUMENT ..................................... xiv
ISSUES PRESENTED ........................................................................................ xv
1. Whether the Trial Court abused its discretion by enjoining Stripes and the DSI Arbitration?
2. Whether the Trial Court abused its discretion by extending the injunction against Stripes and the DSI Arbitration?
3. Whether Plaintiff’s applications for injunctive relief and the Trial Court’s temporary injunction orders are void for having violated the stay imposed by Section 171.025 of the Texas Civil Practice and Remedies Code and formalized in the Trial Court’s December 2, 2015 Agreed Stay Order?
4. Whether Plaintiff’s applications for a temporary injunction were properly verified and properly before the Trial Court?
5. Whether Plaintiff failed to plead and prove a cause of action?
6. Whether the temporary injunction orders improperly destroy rather than preserve the status quo?
7. Whether Plaintiff established imminent, irreparable harm?
A. Whether the Trial Court has the right to decide arbitrability when the Election And Arbitration Agreement and the DSI Rules provide that the DSI arbitrator is to decide all arbitrability disputes and challenges? B. Whether Plaintiff waived any objection to the DSI arbitrator’s jurisdiction? ii 8. Whether Plaintiff proved a probable right to the injunctive relief sought?
A. Whether Plaintiff proved that the courts have the right to decide arbitrability disputes under the Election And Arbitration Agreement? B. Whether Plaintiff proved that he has the right to trial by jury? 1. Whether Plaintiff proved the Election And Arbitration Agreement is unenforceable? 2. Whether Plaintiff ratified the Election And Arbitration Agreement? 3. Whether the Agreed Stay Order independently obligates Plaintiff to arbitrate as a Rule 11 agreement?
9. Whether Stripes intentionally, unequivocally waived its arbitration rights?
ABBREVIATIONS AND RECORD REFERENCES ..................................... xiv
STATEMENT OF FACTS ..................................................................................... 1
The Mrayyan Brothers. .......................................................................................... 1
The Election And Arbitration Agreement and ERISA Plan. ................................. 3
Plaintiff Accepted the Terms of the Election And Arbitration Agreement ........... 5
Plaintiff’s March 27, 2013 On-the-Job Injury at Stripes ....................................... 7
Payments by the Plan. ............................................................................................ 7
Plaintiff’s Counsel’s Knowledge of the Plan’s Payments. .................................... 8
Stripes Added to this Lawsuit. ............................................................................... 10
The December 2, 2014 Agreed Stay Order ........................................................... 11
Plaintiff’s March 6 and 19, 2015 Demands for Arbitration. ................................. 12
The Plan’s Plea in Intervention .............................................................................. 13
The Plan’s Questioning of Dr. Snook. ................................................................... 15
iii The DSI Arbitration ............................................................................................... 16
Plaintiff’s Applications to Enjoin the DSI Arbitration .......................................... 17
Stripes’ Filings in this Court .................................................................................. 18
SUMMARY OF THE ARGUMENT .................................................................. 20
ARGUMENT ......................................................................................................... 26
I. PLAINTIFF’S APPLICATIONS FOR INJUNCTIVE RELIEF AND THE ORDERS GRANTING IT ARE ALL VOID. ..................................... 26
II. IN ADDITION TO BEING VOID, PLAINTIFF’S FIRST AMENDED APPLICATION WAS ALSO NOT PROPERLY VERIFIED, AND PLAINTIFF’S VERIFIED FIFTH AMENDED PETITION WAS NOT PROPERLY BEFORE THE TRIAL COURT. ............................................ 28
III. PLAINTIFF FAILED TO PLEAD AND PROVE A CAUSE OF ACTION ................................................................................................. 32
IV. THE TEMPORARY INJUNCTION DESTROYED THE STATUS QUO ..................................................................................... 38
V. PLAINTIFF FAILED TO ESTABLISH IMMINENT, IRREPARABLE HARM. ......................................................................................................... 43
A. Plaintiff has no right to have the Trial Court decide arbitrability; Arbitrator Black decides all arbitrability disputes. ................................ 44
B. Plaintiff has waived any objection to Arbitrator Black’s jurisdiction. . 48
VI. PLAINTIFF FAILED TO PROVE A PROBABLE RIGHT TO THE INJUNCTIVE RELIEF SOUGHT. .............................................................. 51
A. Plaintiff failed to prove that the courts have the right to decide arbitrability disputes. ............................................................................ 51
B. Plaintiff failed to prove that he has the right to trial by jury. ............... 52
iv 1. The Election And Arbitration Agreement is enforceable. ............53
2. Plaintiff ratified the Election And Arbitration Agreement. .........58
3. The Agreed Stay Order obligates Plaintiff to arbitrate. ...............60
VII. STRIPES DID NOT WAIVE ITS ARBITRATION RIGHTS. ...................61
CONCLUSION......................................................................................................63
PRAYER ................................................................................................................64
CERTIFICATE OF SERVICE ...........................................................................64
CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(i)(3) ..........................65
v INDEX OF AUTHORITIES Cases
8100 N. Freeway Ltd. v. City of Houston, 329 S.W.3d 858 (Tex. App.—Houston [14th Dist.] 2010, no pet.) .........................................42
Adust Video v. Nueces County, 996 S.W.2d 245 (Tex. App.—Corpus Christi, 1999, no pet.) ..................................................34
Akins v. Citizens Nat’l Bank, 217 S.W.2d 199 (Tex. Civ. App.—El Paso 1948, writ ref’d) ..................................................61
Aspri Investments, LLC v. Afeef, 2011 Tex. App. LEXIS 7082 (Tex. App.—San Antonio Aug. 31, 2011, pet. dism’d)(mem. op .) ............. 48
Associate Employers Lloyds v. Howard, 156 Tex. 277, 294 S.W.2d 706 (1956) ... 56
Aviles v. Russell Stover Candies, Inc., 559 Fed. Appx. 413, 2014 U.S. App. LEXIS 6248 (5th Cir. April 4, 2014) ............................45, 52
Ballenger v. Ballenger, 668 S.W.2d 467 (Tex. App.—Corpus Christi 1984, writ dism’d w.o.j.) ...................................................................................22, 38
Barker v. Roelke, 105 S.W.3d 75 (Tex. App.—Eastland 2003, pet. denied) .......... 60
Burlington Resources Oil & Gas Co. v. San Juan Basin Royalty Trust, 249 S.W.3d 34 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) ......47, 52
Bustos v. Intex Aviation Services, Inc., 1996 U.S. Dist. LEXIS 14475 (N.D. Tex. Aug. 26, 1996)(Buchmeyer, C.J.) ...............................................59
Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002) ......................32, 34, 43, 51
Cantella & Co. v. Goodwin, 924 S.W.2d 943 (Tex. 1996) .....................................54
Cantu v. Holiday Inns, 910 S.W.2d 113 (Tex. App.—Corpus Christi 1995, writ denied) ............................................28
Circuit City Stores v. Curry, 946 S.W.2d 486 (Tex. App.—Fort Worth 1997, orig. proceeding) .........................................50 vi City of Arlington v. Dallas-Fort Worth Safety Coach Co., 270 S.W. 1094 (Tex. Civ. App.—Fort Worth 1925, no writ) ................................................28
Contec Corp. v. Remote Solution Co., 398 F.3d 205 (2d Cir. 2005) .......................48
D. Wilson Constr. Co. v. McAllen Ind. Sch. Dist., 848 S.W.2d 226 (Tex. App.—Corpus Christi 1992, writ dism’d w.o.j.) ...............23, 43, 48, 54
De Villagomes v. First Nat’l Bank-Edinburg, 2005 Tex. App. LEXIS 6175 (Tex. App.—Corpus Christi 2005, pet. denied)(mem. op.) ..........................55
Ernst & Young LLP v. Martin, 278 S.W.3d 497 (Tex. App.—Houston [14th Dist.] 2009, no pet.) .........................................45
EZ Pawn Corp. v. Mancias, 934 S.W.2d 87 (Tex.1996) ...................................53, 54
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) ..............................45
Forest Oil Corp. v. McAllen, 268 S.W.3d 51 (Tex. 2008) ......................................45
Gen. Tel. Co. v. City of Wellington, 294 S.W.2d 385 (Tex. 1956) ..........................42
Guynn v. Corpus Christi Bank & Trust, 580 S.W.2d 902 (Tex. Civ. App.—Corpus Christi 1979, writ ref’d n.r.e)...............................61
Guzman v. Inter National Bank, 2008 Tex. App. LEXIS 2034, 2008 WL 739828 (Tex. App.—Corpus Christi 2008, no pet.)(mem. op.) .........................................................................................56
Haddock v. Quinn, 287 S.W.3d 158 (Tex. App.—Fort Worth 2009, pet. denied) ............................................47, 52
Hood v. Amarillo Nat’l Bank, 815 S.W.2d 545 (Tex. 1991) ...................................27
Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002) ..................................45
IHS Acquisition No. 131, Inc. d/b/a Horizon Healthcare Center at El Paso v. Iturralde, 387 S.W.3d 785 (Tex. App.—El Paso, 2012, no pet.)............46, 52
vii IHS Acquisition No. 171, Inc. d/b/a Mesa Hills Specialty Hospital v. Beatty-Ortiz, 387 S.W.3d 799 (Tex. App.—El Paso, 2012, no pet.) ......46, 52
Indemnity Ins. Co. of North America v. W.L. Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553 (1937) ..........................................................55
In re AdvancePCSHealth LP, 172 S.W.3d 603 (Tex. 2005) ...................................53
In re Bank One, 216 S.W.825 (Tex. 2007) ..............................................................62
In re Big 8 Food Stores, Ltd., 166 S.W.3d 869 (Tex. App.—El Paso 2005, orig. proceeding) .........................................55, 59
In re Border Steel, Inc., 229 S.W.3d 825 (Tex. App.—El Paso 2007, orig. proceeding) .........................................37, 59
In re Bruce Terminix Co., 988 S.W.2d 702 (Tex. 1998) .........................................62
In re Burton, McCumber & Cortez, LLP, 115 S.W.3d 235 (Tex. App.—Corpus Christi 2003, orig. proceeding)........................23, 44, 48
In re Consolidated Freightways, 75 S.W.3d 147 (Tex. App.—San Antonio 2002, orig. proceeding) .......................................27
In re D. Wilson Constr. Co., 196 S.W.3d 774 (Tex. 2006) .....................................62
In re FirstMerit Bank, N.A., 52 S.W.3d 749 (Tex. 2001) ..................................32, 34
In re HEB Grocery Co., L.P., 299 S.W.3d 393 (Tex. App.—Corpus Christi 2009, orig. proceeding)....................................59
In re Helena Chem. Co., 286 S.W.3d 492 (Tex. App.—Corpus Christi 2009, orig. proceeding)....................................26
In re Hospitality Employment Group, 234 S.W.3d 832 (Tex. App.—Dallas 2007, orig. proceeding) .................................................50
In re McKinney, 167 S.W.3d 833 (Tex. 2005) ........................................................54
viii In re MetroPCS Communs., Inc., 391 S.W.3d 329 (Tex. App.—Dallas 2013, orig. proceeding) .................................................28
In re Neutral Posture, Inc., 135 S.W.3d 725 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) ............................47
In re Newton, 146 S.W.3d 648, 651 (Tex. 2004)...............................................21, 38
In re Nationwide Credit, Inc., 2009 Tex. App. LEXIS 2243 (Tex. App.—Corpus Christi 2009, orig. proceeding)(mem. op.) .................. 26
In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571 (Tex. 1999) ...................46, 53
In re Palm Harbor Homes, Inc., 195 S.W.3d 672 (Tex. 2006) ...............................53
In re Pediatrix Medical Services, Inc., 2005 Tex. App. LEXIS 5861 (Tex. App.—Dallas 2005, orig. proceeding)(mem. op.) ...............................26
In re Union Carbide Corp., 273 S.W.3d 152 (Tex. 2008) ......................................61
In re Vesta Ins. Group, Inc., 192 S.W.3d 759 (Tex. 2006) .....................................62
In re Weekly Homes, L.P., 180 S.W.3d 127 (Tex. 2005) ........................................44
Kotz v. Imperial Capital Bank, 319 S.W.3d 54 (Tex. App.—San Antonio 2010, no pet.) ......................................................35
Land Title Co. v. F.M. Stigler, Inc., 609 S.W.2d 754 (Tex. 1980) ..........................59
Law Funder, LLC v. Law Offices of Douglas A. Allison, 2014 Tex. App. LEXIS 2504, 2014 WL 895512 (Tex. App.—Corpus Christi March 6, 2014, no pet.)(mem. op.) .................. 34
Morrison v. Insurance Company of North America, 69 Tex. 353, 6 S.W.605 (1887) .....................................................................54
Momentis U.S. Corp. v. Weisfeld, 2014 Tex. App. LEXIS 8000, 2014 WL 3700697 (Tex. App.—Dallas July 23, 2014, no pet.)(mem. op.) ...................................................................................47, 52
ix Nautical Landings Marina, Inc. v. First Nat’l Bank, 791 S.W.2d 293 (Tex. App.—Corpus Christi 1990, writ denied) ............................................26
Nguyen Ngoc Giao v. Smith & Lam, P.C., 714 S.W.2d 144 (Tex. App.—Houston [1st Dist.] 1986, no writ) ...........................................56
Ouzene v. Haynes, 2012 Tex. App. LEXIS 2888, 2012 WL 1249420 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)(mem. op.) ................... 49
Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008).................................................62
Petrofac, Inc. v. Dynmcdermott Petrol. Ops. Co., 687 F.3d 671 (5th Cir. 2012) ... 48
Pilgrim Investment Corp. v. Reed, 156 Wis. 2d 677, 457 N.W.2d 544 (Wis. Ct. App.), review denied, 458 N.W.2d 533 (Wis. 1990) .....................50
Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366 (Fed. Cir. 2006) ............................47
Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010)....................22, 45, 46, 52
Rio Grande Xarin, II, Ltd. v. Wolverine Robstown, LP, 2010 Tex. App. LEXIS 5189, 2010 WL 2697145 (Tex. App.— Corpus Christi July 6, 2010, pet. dism’d)(mem. op) ................... 44-45, 47, 52
Rogers v. B&R Dev., Inc., 523 S.W.2d 15 (Tex. Civ. App.—Fort Worth 1975, no writ) ................................................58
Royston, Rayzor, Vickery & Williams, LLP v. Lopez, 2015 Tex. LEXIS 622 (Tex. June 26, 2015) .........................21, 24, 34, 53, 54
Saxa v. DFD Architecture Inc., 312 S.W.3d 224 (Tex. App.—Dallas 2010, pet. denied)....................................................47, 52
Schlumberger Tech. Corp. v. Baker Hughes, Inc., 355 S.W.3d 791 (Tex. App.—Houston [1st Dist.] 2011, no pet.) ............................................48
Star-Tel, Inc. v. Nacogdoches Telecommunications, Inc., 755 S.W.2d 146 (Tex. App.—Houston [1st Dist.] 1988, no writ) ...........................................27
x Tamez v. Southwestern Motor Transp., Inc., 155 S.W.3d 564 (Tex. App.—San Antonio 2004, no pet.) ......................................................56
Terminix Int’l Co. v. Palmer Ranch Ltd., 432 F.3d 1327 (11th Cir. 2005) ............. 48
Texas State Board of Medical Examiners v. McKinney, 315 S.W.2d 387 (Tex. Civ. App.—Waco 1958, no writ) ...................................................28, 33
Thomas Petroleum, Inc. v. Morris, 355 S.W.3d 94 (Tex. App.—Houston [1st Dist.] 2011, pet. denied), cert. denied, 133 S. Ct. 210 (2012) ............... 49
Trevino v. Houston Orthopedic Center, 831 S.W.2d 341 (Tex. App.—Houston [14th Dist.] 1992, writ denied) ..................................60
Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13 (Tex. App.—San Antonio 1998, no pet.) ......................................................55
Volt Info. Sciences, Inc. v. Board of Trustees, 489 U.S. 468 (1989) .......................46
Westfield Dev., Inc. v. Rubashkin, 2007 Tex. App. LEXIS 1154 (Tex. App.—Houston [1st Dist.] 2007, no pet.)(mem. op.) ..........................58
Williams v. Bagley, 875 S.W.2d 808 (Tex. App.—Beaumont 1994, no writ) ........ 28
Statutes
Texas Civil Practice and Remedies Code Section 171.025 ........................20, 26, 63
Rules
Texas Rule of Civil Procedure 11 ............................................ 12, 24, 40, 60, 61, 63
Texas Rule of Civil Procedure 14 ...........................................................................28
Texas Rule of Civil Procedure 21 .....................................................................20, 31
Texas Rule of Civil Procedure 40 .....................................................................15, 61
Texas Rule of Civil Procedure 60 .....................................................................14, 61
xi Texas Rule of Civil Procedure 682 ...................................................................28, 33
Texas Rule of Civil Procedure 683 ..........................................................................21
Dispute Solutions, Inc. Arbitration Rule 5 .....................................23, 47, 49, 52, 63
American Arbitration Association Employment Arbitration Rule 6 .......................49
xii STATEMENT OF THE CASE
This is an interlocutory appeal of the Trial Court’s temporary injunction
order, Appendix Tab 1, (and a second order extending the temporary injunction,
Appendix Tab 2) enjoining Appellant Stripes LLC (“Stripes”) from going forward
in an arbitration proceeding that Appellee/Plaintiff Hazem Mrayyan (“Plaintiff”)
initiated against Stripes before Dispute Solutions, Inc. (“DSI”). The temporary
injunction orders enjoin Stripes from having the DSI arbitrator decide whether an
arbitration agreement between Plaintiff and Stripes is valid and enforceable.
Appendix Tabs 1 and 2. The temporary injunction orders enjoin the DSI
Arbitration until after the Trial Court conducts a hearing, now set for July 28,
2015, on whether the agreement is unconscionable or was fraudulently induced.
Appendix Tab 2 at ¶5.
xiii STATEMENT REGARDING ORAL ARGUMENT
Stripes believes that oral argument would assist in the Court’s understanding
and expeditious resolution of this interlocutory appeal. The record is somewhat
voluminous, and oral argument would give the Court an opportunity to question
counsel about the injunction proceedings in the Trial Court and the evidence
relating to the issues on this accelerated appeal. The Trial Court’s ruling raises
important questions about the effect of an employee’s undisputed signature on an
arbitration agreement and conflicts with decisions by the United States Supreme
Court, the U.S. Fifth Circuit Court of Appeals and the El Paso Court of Appeals
that an arbitrator, rather than the courts, is authorized to decide arbitrability issues
when the parties’ arbitration agreement contains an unchallenged “delegation
provision” or incorporates arbitration rules that expressly reserve arbitrability
issues for the arbitrator’s determination.
xiv ISSUES PRESENTED
1. Whether the Trial Court abused its discretion by enjoining Stripes and the
DSI Arbitration?
2. Whether the Trial Court abused its discretion by extending the injunction
against Stripes and the DSI Arbitration?
3. Whether Plaintiff’s applications for injunctive relief and the Trial Court’s
temporary injunction orders are void for having violated the stay imposed
by Section 171.025 of the Texas Civil Practice and Remedies Code and
formalized in the Trial Court’s December 2, 2015 Agreed Stay Order?
4. Whether Plaintiff’s applications for a temporary injunction were
properly verified and properly before the Trial Court?
5. Whether Plaintiff failed to plead and prove a cause of action?
6. Whether the temporary injunction orders improperly destroy rather than
preserve the status quo?
A. Whether the Trial Court has the right to decide arbitrability when the
Election And Arbitration Agreement and the DSI Rules provide that
the DSI arbitrator is to decide all arbitrability disputes and challenges?
B. Whether Plaintiff waived any objection to the DSI arbitrator’s
jurisdiction? xv 8. Whether Plaintiff proved a probable right to the injunctive relief sought?
A. Whether Plaintiff proved that the courts have the right to decide
arbitrability disputes under the Election And Arbitration Agreement?
B. Whether Plaintiff proved that he has the right to trial by jury?
1. Whether Plaintiff proved the Election And Arbitration
Agreement is unenforceable?
2. Whether Plaintiff ratified the Election And Arbitration
Agreement?
3. Whether the Agreed Stay Order independently obligates
Plaintiff to arbitrate as a Rule 11 agreement?
9. Whether Stripes intentionally, unequivocally waived its arbitration rights?
xvi ABBREVIATIONS AND RECORD REFERENCES
“Plaintiff” refers to Plaintiff Hazem Mrayyan, Plaintiff in this lawsuit and the Claimant in the DSI Arbitration he filed against Stripes.
“Stripes” refers to Defendant Stripes LLC, the remaining Defendant in this lawsuit and Respondent in the DSI Arbitration.
“Sammy Mrayyan” refers to Plaintiff’s older brother, Salameh “Sammy” Mrayyan, the Stripes store manager who presented the Election And Arbitration Agreement to Plaintiff.
“Election And Arbitration Agreement” refers to the Election And Arbitration Agreement governed by the FAA and accepted by Plaintiff on December 14, 2012, and the incorporated Arbitration Procedures from the Plan’s SPD. Appendix Tab 4.
“Arbitration Procedures” refers to the Arbitration Procedures in Section IX of the Plan’s SPD (provided to Appellant on December 14, 2012) that are expressly incorporated into the Arbitration Agreement and that specify the DSI Rules.
“FAA” refers to the Federal Arbitration Act, 9 U.S.C. §1 et seq.
“Plan” refers to the Susser Holdings, L.L.C. Employee Injury Benefit Plan.
“SPD” refers to the Plan’s Summary Plan Description that contains, inter alia, the Arbitration Procedures.
“DSI” refers to Dispute Solutions, Inc., the arbitration service specified in the Election And Arbitration Agreement’s Arbitration Procedures and administering the DSI Arbitration.
“DSI Arbitration” refers to the arbitration proceeding initiated by Plaintiff on March 6, 2015 before DSI.
“DSI Rules” refers to DSI’s Arbitration Rules that under the Arbitration Procedures and the Agreed Stay Order govern the DSI Arbitration.
“Arbitrator Black” refers to former President of the State Bar of Texas, Robert A. “Bob” Black, the arbitrator selected by Plaintiff and Stripes to preside over the DSI Arbitration. xvii “Merrell” refers to Merrell Lease Service, Inc. in Gregory, Texas, the owner of the truck that ran and backed over Plaintiff while he was working at Stripes on March 27, 2013, formerly a Defendant in this lawsuit before settling with Plaintiff.
“Powell” refers to Eric Scott Powell, the Merrell employee who was operating the pickup truck on March 27, 2013 that struck Plaintiff, formerly a Defendant in this lawsuit before settling with Plaintiff.
“Mr. Burkett” refers to David T. Burkett, Esq., Plaintiff’s original counsel in this lawsuit.
“Mr. Gonzales” refers to Rudy Gonzales, Jr., Plaintiff’s current lead counsel in this lawsuit and the DSI Arbitration.
“Sarles” refers to Gary D. Sarles, Esq., Stripes’ lead counsel in this lawsuit and in the DSI Arbitration.
“Application” refers to Stripes’ Original Answer And Application For Order For Arbitration filed in this lawsuit on October 8, 2014.
“Agreed Stay Order” refers to the Trial Court’s December 2, 2014 order negotiated by Mr. Gonzales and Sarles and submitted to the Trial Court for entry without hearing or contest. Appendix Tab 5.
“Motion To Lift Stay” refers to Plaintiff’s Motion To Lift Stay Of Proceedings And Dismiss Stripes LLC’s Order For Arbitration filed April 24, 2015.
The Clerk’s Record consists of twenty-one (21) volume. References to the Clerk’s Record are in the format: [volume]CR[page-page].
The Supplemental Clerk’s Record consists of one (1) volume. References to the Supplemental Clerk’s Record are in the format: SCR [page-page].
The Reporter’s Record consists of five (5) volumes. References to the Reporter’s Record are in the format: RR[volume] [p._,l._ - p._,l._].
The Supplemental Reporter’s Record consists of one (1) volume. References to the Supplemental Reporter’s Record are in the format: SRR [p._,l._ - p._,l._].
xviii STATEMENT OF FACTS
The following facts should be undisputed. See RR3 p.76,ll.14-15.
The Mrayyan Brothers
1. Plaintiff is a native of Jordan, whose wife and children still live there.
RR3 p.157,ll.1-11; DX24 at ¶2.
2. Plaintiff primarily speaks Arabic, RR3 p.10,l.6, but as the Trial Court
stated, “We all understand that [Plaintiff] speak[s] some English and . . .
understand[s] some English,” and twice instructed Plaintiff to wait for the Arabic
translation before answering questions. RR3 p.218,l.17 – p.219,l.13; RR3
p.209,ll.14-18; see RR3 p.194,l.21; p.200,l.22; p.203,ll.14-20; p.208,l.8; p.226,ll.18-
19; p.229,l.22 – p.230,l.3; p.231,l.6; p.246,ll.9-10; p.248,l.17; p.250,ll.10-11;
p.253,l.17 – p.254,l.2; p.254,l.16 (Plaintiff answering questions in English or before
the questions were translated for him into Arabic).
3. Plaintiff took courses in English in high school in Jordan, RR3
p.217,ll.4-9, and graduated from high school 1987. DX14 at p.8. Plaintiff won a
scholarship to study law in Yemen and attended school there for one or two years.
DX14 at p.8; RR3 p.221,ll.2-9. In Jordan, Plaintiff obtained a college degree in
Business Administration in 1993. RR3 p.221,ll.16-20.
4. Plaintiff worked as an accountant at a commissary in Jordan for three
years, RR3 p.222,ll.1-17, and then worked in Jordan until 2007 in accounting and
-1- check verification for United Bank and then City Town Bank. RR3 p.222,ll.18-24.
5. Plaintiff came to the United States in 2007 and worked in Nashville,
Tennessee at a gas station, then at a gas station in Weir, Mississippi, and later at a
convenience store in Starkville, Mississippi. DX14 at p.11; RR3 p.223,ll.5-12; RR4
p.39,l.2 – p.41,l.6.
6. While living in Starkville, Plaintiff attended Mississippi State
University (“MSU”), where he studied Business Administration, taking courses
taught in English, with English textbooks and English-speaking professors. DX15;
RR3 p.177,l.23 - p.178,l.3. While at MSU, Plaintiff passed an English Composition
course. DX16; RR3 p.227,l.2 – p.228,l.19. Plaintiff passed his classes at MSU, was
never placed on academic probation, and the only reason that Plaintiff ceased
attending MSU was because Plaintiff sold his gas stations/convenience store
business in Starkville and followed his brother to Corpus Christi. RR3 p.177,l.2 –
p.178,l.3; DX26 at p.3.
7. Plaintiff managed and owned two Chevron gas stations in Starkville,
with several employees at each station. DX26 at p.3; RR3 p.178,l.22 - p.179,l.11.
Plaintiff had no language barrier problems with customers and employees while
operating his gas stations in Starkville. RR3 p.179,ll.19-24. Plaintiff and his older
brother, Salameh Mrayyan (“Sammy Mrayyan”), leased the Chevrons; Sammy
Mrayyan would explain the leases to Plaintiff, who signed them; Plaintiff does not
-2- remember if they had arbitration provisions. RR3 p.200,l.14 – p.202,l.4. Plaintiff
took out a bank loan on one of his Chevrons, RR3 p.202,l.15 – p.203,l.9, and sold
his Chevron business in 2012. RR3 p.203, l.21 – p.204,l.8; RR4 p.41,l.16 – p.42,l.23.
8. Plaintiff’s brother Sammy Mrayyan moved to the United States from
Jordan in 1985. RR4, p.26,l.16 – p.27,l.6. He obtained a Bachelor’s Degree in
Aerospace in 1995 from Middle Tennessee State University, obtained a Master’s
Degree in Aerospace from it in 1996, RR4 p.27,l.9 – p.28,l.15, and received a post-
Master’s education degree from it in in administration and supervision in 1997. RR4
p.30,l.17 – p.31,l.17. He moved to Florida in 2004 and worked on his Ph.D. in
computer technology at [Nova] Southeastern University. He completed the Ph.D.
course work but did not finish his dissertation. In 2005, he was awarded another
Master’s Degree, in computer technology. RR4 p.35,l.18 – p.36,l.4, p.37,ll.6-13.
9. Over the years, Sammy Mrayyan worked and owned convenience
stores in LaVergne and Nashville, Tennessee, RR4 p.31,l.22 – p.33,l.14, in Florida,
RR4 p.36,ll.3-9, and then again in Nashville. RR4 p.37,l.18 – p.38,l.14. He owned
and operated a travel agency in Jordan from 2000-2003, RR4 p.33,l.19 – p.34,l.18,
and then ran wireless AT&T stores in North Carolina until 2004. RR4 p.35,ll.2-15.
10. Sammy Mrayyan moved to Corpus Christi in 2012 to work at Stripes,
and Plaintiff moved down a little later. RR4 p.44,ll.8-23. After working as a
manager in training for Stripes, Sammy Mrayyan was promoted to general manager.
-3- RR4 p.45,l.16 – p.46,l.7. In 2012-2013, he was training about 30 employees for a
new store to be built. RR4 p.47,ll.2-24. He trained employees with online computer
training that an employee has to pass before getting into the field. RR4 p.47,l.25 –
p.48,l.13. As a general manager, his boss was a Stripes Area Manager, Kamal
Ghanem, a Jordanian friend of his. RR4 p.49,ll.3-14. Mr. Ghanem trained him on
the Election And Arbitration Agreement. RR3 p.79,ll.1-9.
11. Plaintiff worked as a security guard for Weiser Security at the Corpus
Christi Airport in 2012; his brother Sammy Mrayyan explained and translated the
new-hire paperwork that was in English and may have included an arbitration
provision. RR3 p.224,l.3 – p.225,l.21.
The Election And Arbitration Agreement and ERISA Plan
12. Stripes is a nonsubscriber to the optional Texas Workers’
Compensation Act and does not carry workers’ compensation insurance. PX1 at p.1;
PX2 at p.1; RR3 at p.12,ll.13-18. Stripes has a benefit plan under the Employee
Retirement Income Security Act of 1974 (“ERISA”), the Susser Holdings, LLC
Employee Injury Benefit Plan (“Plan”), that provides benefits for occupational
injuries. PX1 at p.1; PX2 at p.1; RR3 at p.13,ll.2-6.
13. By accepting the terms of an Election And Arbitration Agreement, a
Stripes employee becomes eligible for benefits from the Plan for occupational
injuries and agrees to mediate and arbitrate disputes with Stripes. PX1 at p.1; PX2
-4- at pp.1-2; RR3 p.84,ll.1-13. By rejecting the terms of an Election And Arbitration
Agreement, an employee is not eligible for benefits from the Plan for occupational
injuries but does not agree to arbitrate disputes with Stripes. PX1 at p.1; PX2 at
pp.1-2; RR3 p.84,ll.1-13.
14. Stripes employees are required to sign the Election And Arbitration
Agreement, but its signature page gives the employee the option either to accept or
reject its terms. RR3 p.82,ll.3-12. Its signature page, PX2 at p.4, provides in part:
CHECK ONLY ONE OF THE FOLLOWING BOXES: I agree to the terms of this Agreement. OR I reject the terms of this Agreement.
15. Because the Election And Arbitration Agreement is optional for an
employee, accepting its terms is not a condition of employment. RR3 p.83,l.2 –
p.84,l.13. In fact, an employee who accepts the terms of the Election And
Arbitration Agreement has 5 days after accepting it to revoke the acceptance. PX2
at p.3; RR3 at p.135,l.22 – p.136,l.14.
Plaintiff Accepted the Terms of the Election And Arbitration Agreement
16. On December 14, 2012, Plaintiff applied for part-time employment
with Stripes and signed an Election And Arbitration Agreement. PX2 at p.4; RR3
p.159,ll.8-23; RR3 p.14,ll.23-24.
17. Sammy Mrayyan was the Stripes manager who printed it out and
presented it to Plaintiff for signature, RR3 p.14,l.21 – p.15, l.6, and Sammy Mrayyan
already had signed and accepted the terms of his own identical Election And
-5- Arbitration Agreement on September 12, 2012, DX7 at p.4; RR3 p.132,l.21 –
p.133,l.7, and subsequently served his own pro se Demand for Arbitration regarding
his own asserted occupational injury at Stripes. DX8, p.133,l.8 – p.135,l.18.
18. “Sammy Mrayyan did not explain the meaning of the arbitration
agreement to [Plaintiff] before [he] signed the Election And Arbitration Agreement.
Sammy Mrayyan did not explain any of the contents of the Election And Arbitration
Agreement to [Plaintiff] before [he] signed it.” RR3 p.256,ll.3-16; DX24 at ¶6.
19. When Plaintiff signed the Election And Arbitration Agreement he did
not know anything about it, RR4 p.9,ll.3-9, and he does not remember seeing it or
anyone from Stripes explaining it to him or discussing it with him. RR3 p.160,ll.3-
11. Plaintiff’s counsel has stipulated that no one explained any part of it to Plaintiff
and that no one translated any part of it to him. RR4 p.10,ll.17-20.
20. When Plaintiff signed the Election And Arbitration Agreement he
correctly followed the instructions on its signature page, properly checking only one
of the two boxes, signing it on the signature line, printing his name, and dating his
signature. PX2 at p.4; RR3 p.81,l.14 – p.82,l.2.
21. Plaintiff signed the Election And Arbitration Agreement because he
needed to work, RR4 p.9,ll.3-9, but there was no economic duress by Stripes when
Plaintiff signed it. RR4 p.8,ll.1-16.
22. At Stripes, Plaintiff took several online computerized training courses
-6- in English and passed each one with between an 80% and 100% score. DX17;
DX18; RR3 p.231,p.17 – p.233,l.9.
Plaintiff’s March 27, 2013 On-the-Job Injury at Stripes
23. On March 27, 2013, Sammy Mrayyan asked Plaintiff to clean the “spill
buckets” to the underground storage tanks in the parking area of the Stripes on
Morgan in Corpus Christi. DX22 at p.3; RR3 p.11,ll.7-18.
24. A pickup truck owned by former Defendant Merrell Lease Service, Inc.
(“Merrell”) and driven by former Defendant Eric Powell (“Powell”) stopped at the
Stripes to use its air compressor near the spill buckets where Plaintiff was working.
DX22 at p.3; RR3 p.11,ll.19-25; PX6 at Exhibit H (photos).
25. Powell asked Plaintiff for change and made eye contact with him
several times before airing one of the truck’s tires; Powell’s passenger also spoke to
Plaintiff. DX22 at p.3. Powell then pulled the truck forward, running over Plaintiff,
and then backed up the truck, again running over him. RR3 p.12,ll.1-6.
Payments by the Plan
26. In reliance on Plaintiff’s acceptance of the Election And Arbitration
Agreement, the Plan began paying hundreds of thousands of dollars of benefits to
Plaintiff and to his medical providers for the care of the injuries that he sustained on
March 27, 2013. DX20; DX21; RR3 p.92,ll.3-14.
-7- 27. In reliance on Plaintiff’s acceptance of the Election And Arbitration
Agreement, the Plan’s Total Benefit Limit was increased from $250,000 to $450,000
to cover Plaintiff’s on-going medical expenses. RR3 p.94,l.15 – p.95,l.12.
28. Plaintiff knew the Plan paid the official billing statements from the
hospitals that he attended and for the treatment that he received. RR3 p.235,l.11 –
p.236,l.11; DX19 at pp.9-10; DX20. Plaintiff also knew he was receiving a net
weekly check from the Plan. RR3 p.236,l.12 – p.237,l.24; DX20 at second page.
29. On October 3, 2013, Plaintiff hired David Burkett, Esq. (“Mr.
Burkett”) to represent him on a contingent-fee basis; the fee agreement was in
English; Sammy Mrayyan translated and explained its terms to Plaintiff. RR3
p.207,l.12 – p.210,l.16; DX27.
Plaintiff’s Counsel’s Knowledge of the Plan’s Payments
30. In October of 2013, Respondent’s counsel Gary Sarles (“Sarles”)
discussed the Plan’s payment of benefits with Mr. Burkett, RR3 p.91,l.12 – p.92,l.14,
explained that the Plan had paid hundreds of thousands of dollars of benefits in
reliance on Plaintiff’s acceptance of the Election And Arbitration Agreement, RR3
p.92,ll6-14, and then sent Mr. Burkett a November 6, 2013 letter enclosing the
payment registers showing detailed information on each Plan Disability Benefits
check to Plaintiff and Plan Medical Benefits check to his medical providers. DX20.
-8- 31. Although Stripes was not a party to this lawsuit at the time, see 1CR10-
16, on December 18, 2013, Mr. Burkett used Sarles’ November 6, 2013 letter and
its itemization of payments in Plaintiff’s answers to Merrell’s first set of
interrogatories. DX19 at pp.9-10. At that time, the total amount in Medical Benefits
paid by the Plan was $397,524.64. DX19 at p.10; DX20 at p.4.
32. Plaintiff verified those interrogatory answers in English on December
18, 2013. DX19 at p.14 (“I have read the foregoing Answers to Interrogatories
designed to be filed in the above styled and numbered cause, have personal
knowledge of the facts and allegations contained therein, and each and every fact
and allegation contained therein is true and correct.”). Plaintiff subsequently
verified his supplemental interrogatory answers in English. DX22 at p.5 (same).
33. While Plaintiff was represented by Mr. Burkett, the Plan continued
paying thousands of dollars of benefits to Plaintiff with Mr. Burkett’s knowledge.
RR3 p.92,l.15 – p.94,l.2, p.136,ll.17-24; DX9; DX20; DX21. The Election And
Arbitration Agreement provided to Mr. Burkett expressly states that “I agree that
each and every time that I receive Plan benefits, or have Plan benefits paid to a
medical provider on my behalf, I ratify and reaffirm this Agreement the same as if I
had signed this Agreement again on the date the benefits were paid.” PX2 at p.3 of
4 (emphasis in original); RR3 at p.93,ll.5-22.
-9- 34. Plaintiff has never repaid the more than $450,000 in Plan benefits paid
in reliance on Plaintiff’s acceptance of the terms of the Plan. RR3 p.94,ll.3-14,
p.95,l.19 – p.96,l.10, p.138,l.18 – p.140,l.10.
Stripes Added to this Lawsuit
35. On July 16, 2014, Merrell filed a Third Party Petition against Stripes in
this lawsuit, 1CR286-292, and on July 28, 2014, Plaintiff filed Plaintiff’s First
Amended Petition in this lawsuit, adding Stripes as a Defendant. 1CR308-318.
36. On August 18, 2014, Plaintiff gave his deposition in this case in English
and without the use of an interpreter, because Mr. Burkett represented to the defense
attorneys that Plaintiff could give the deposition in English without an interpreter.
RR3 p.90,l.11 – p.91,l.8. Neither Mr. Burkett nor Plaintiff made any changes to
Plaintiff’s deposition transcript testimony. DX23.
37. On October 8, 2014, Stripes filed its Original Answer And Application
For Order For Arbitration (“Application”), with Plaintiff’s signed Election And
Arbitration Agreement and the pertinent provisions of the Plan’s Summary Plan
Description (“SPD”) attached as Exhibits 1 and 2. 1CR523-535; DX1; RR3
p.98,l.11 – p.99,l.10. The Application asserted that the filing or “making” of the
Application automatically stayed all claims against Stripes pursuant to Section
171.025(a) of the Civil Practice and Remedies Code. 1CR523-524; DX1 at p.2; RR3
p.99,ll.11-19.
- 10 - The December 2, 2014 Agreed Stay Order
38. After Plaintiff’s lead counsel, Rudy Gonzalez (“Mr. Gonzales”),
appeared in this lawsuit on September 25, 2014, 1CR516-517, Sarles and he
discussed the Election And Arbitration Agreement and staying all of the claims
against Stripes and agreed to an Order Granting Stripes LLC’s Application For Order
For Arbitration (“Agreed Stay Order”), 1CR570-571; DX2; RR3 p.99,l.20 –
p.101,l.15, and agreed to stay the proceedings in this lawsuit against Stripes, to the
language of the Agreed Stay Order, and to resolve any disputes between Plaintiff
and Stripes in binding arbitration before Dispute Solutions, Inc. (“DSI”). RR3
p.104,ll.5-22, p.105,ll.15-19.
39. Mr. Gonzales never objected to the enforceability of the Election And
Arbitration Agreement or asserted any defense to its enforceability in his discussions
with Sarles during the negotiations regarding the Agreed Stay Order. RR3 p.106,l.16
– p.107,l.3.
40. The Agreed Stay Order states that it is “Agreed As To Form Only,” not
“Approved As To Form Only.” 1CR571; DX2 at p.2; RR3 p.107,ll.8-14. Mr.
Gonzales’ partner signed the Agreed Stay Order for Plaintiff and had it filed with
and signed by the Trial Court. 1CR571; DX2 at p.2; RR3 p.107,ll.15-21. Regarding
the Agreed Stay Order, Mr. Gonzales admitted during his opening statement that
“we did not contest it at that time.” RR3 p.17,ll.15-16.
- 11 - 41. The Agreed Stay Order was signed by the Trial Court on December 2,
2014. 1CR570; DX2 at p.1. It provides:
Defendant Stripes LLC having filed with its Original Answer an Application for Order for Arbitration requesting a formal written order enforcing the automatic stay imposed by Section 171.025(a) of the Civil Practice and Remedies Code on any further proceedings against Stripes LLC in this lawsuit, the Court is of the opinion that the statutory stay should be formalized by this Order. It is, therefore, ORDERED that Plaintiff Hazem Mrayyan’s claims and causes of action and all further proceedings against Defendant Stripes LLC be, and they hereby are, stayed pending resolution of these two parties’ claims, causes of action and defenses in binding arbitration before Dispute Solutions, Inc. (“DSI”) in accordance with their Election And Arbitration Agreement and the DSI Arbitration Rules.
42. The Agreed Stay Order was not prepared to memorialize any oral ruling
by the Trial Court on Stripes’ Application; no hearing ever took place on Stripes’
Application, because Mr. Gonzales and Sarles agreed to the Agreed Stay Order and
submitted it to the Trial Court for entry without any hearing on the Application ever
taking place; Sarles considered the Agreed Stay Order an agreed order or at least a
Rule 11 agreement; Stripes relied on the Agreed Stay Order by not setting the
Application for hearing before the Trial Court and by not participating in discovery.
RR3 p.107,l.4 – p.108,l.13, p.124,l.15 – p.125,l.12.
Plaintiff’s March 6 and 19, 2015 Demands for Arbitration
43. On March 6, 2015, Plaintiff’s counsel sent “Hazem Mrayyan’s Demand
for Arbitration” to DSI and to Stripes at the address in the Election And Arbitration
Agreement. DX4; PX2 at pp.18-19; RR3 at p.113,ll.5-12. By March 6, 2015, Mr.
- 12 - Gonzales had been representing Plaintiff for six months and Mr. Burkett had been
representing Plaintiff for 18 months, Plaintiff’s expert reports had already been
served, Plaintiff’s experts’ life care plan and psychologists’ reports were in their
possession, Dr. Pollock’s neuropsychologist report had been provided, and both
Plaintiff and Sammy Mrayyan had given their depositions. RR3 p.109,l.9 –
p.111,l.21.
44. The March 6, 2015 Demand for Arbitration seeks no relief other than
damages, is unconditional, contains no reservation of Plaintiff’s rights, asserts no
objection or defense to the arbitrator’s jurisdiction, and says nothing about being
filed to preserve the statute of limitations. DX4; RR3 p.112,l.6 – p.113,l.12.
45. After the March 6, 2015 Demand for Arbitration was sent to Stripes,
Mr. Hunter, co-counsel with Mr. Gonzales, called Sarles to ask whether the March
6, 2015 Demand for Arbitration was sufficient to invoke arbitration, and Sarles told
him that it did not appear that it had been filed with DSI. RR3 p.113,ll.13-23.
46. Plaintiff’s counsel then electronically filed with DSI on March 19, 2015
a second Demand for Arbitration at DSI’s website address provided by Sarles. DX5;
RR3 p.113,l.24 – p.114,l.5. In the “Relief sought by the Employee” section of the
March 19th Demand, Plaintiff only seeks damages. DX5 at pp.3-4.
47. The March 19, 2015 Demand for Arbitration is unconditional, contains
no reservation of Plaintiff’s rights, asserts no objection or defense to the arbitrator’s
- 13 - jurisdiction, says nothing about being filed to preserve the statute of limitations, and
makes no contention that Plaintiff is not bound by the Election And Arbitration
Agreement because he could not understand English, and Mr. Hunter made no such
assertions in his conversation with Sarles prior to its filing with DSI. DX5; RR3
p.114,l.6 – p.115,l.23.
48. The Agreed Stay Order was in place when Plaintiff’s March 6 and 19,
2015 Demands for Arbitration were filed with DSI, and Plaintiff filed nothing with
the Trial Court or DSI challenging the enforceability of the Election And Arbitration
Agreement or DSI’s jurisdiction. RR3 p.115,l.24 – p.116,l.21.
The Plan’s Plea in Intervention
49. After the Trial Court’s December 2, 2014 entry of the Agreed Stay
Order, Stripes did not participate in this lawsuit. RR3 p.120,l.23 – p.121,l.4.
50. Because of concern that Plaintiff’s counsel would not honor the Plan’s
subrogation rights regarding the $450,000 in Plan benefits paid to and for Plaintiff,
RR3 p.118,ll.2-12, on December 29, 2014, the Plan filed a plea in intervention
pursuant to Rule 60. 1CR572-579; DX6; RR3 p.117,ll.5-12. The Plan did not join
this lawsuit as an additional plaintiff under Rule 40. RR3 p.117,l.20 - p.118,l.1. No
objection was filed to strike the Plan’s intervention. RR3 p.117,ll.13-16.
51. Sarles and his firm were representing the Plan’s interests after
December 29, 2014 in this lawsuit, which were adverse to Plaintiff’s interests
- 14 - regarding the $450,000 in Plan benefits’ recovery and congruent with Plaintiff’s
interests in recovering at least that amount from Defendants Merrell and Powell.
RR3 p.118,l.23 – p.119,l.21.
The Plan’s Questioning of Dr. Snook
52. On March 30, 2015, Sarles appeared as counsel for the Intervenor at the
deposition of Plaintiff’s life care plan expert, Dr. Snook, PX5 at p.2, and after
expressly explaining to Dr. Snook that Sarles represented the Plan, PX5 at p.164,
asked Dr. Snook a series of questions about the life care plan in response to which
he admitted that if Plaintiff underwent the surgeries and physical therapy in the plan,
Plaintiff should be able to utilize the life care plan’s six months of occupational
therapy and then return to work. PX5 at pp.204-205; RR3 p.148,l.15 – p.149,l.15.
53. Shortly after that critical admission, Plaintiff’s counsel objected to
Sarles’ questioning and instructed Dr. Snook not to answer any more of his questions
during the deposition. PX5 at pp.207-215; p.146,ll.22-24.
54. Sarles’ questioning of Dr. Snook furthered the Plan’s interests by
helping move Plaintiff’s settlement demands on the Merrell’s and Powell’s liability
insurer from $15 million to within its $6 million policy limit, resulting in a settlement
of Plaintiff’s claims against them for the $6 million policy limit and providing
sufficient funds for the payment of the Plan’s $450,000 subrogation lien. RR3
p.122,l.24 – p.124,l.14; p.150,l.9 – p.153,l.4.
- 15 - 55. Despite Plaintiff’s $6,000,000 settlement with Merrell and Powell
including amounts for Plaintiff’s past medical care and lost wages, Plaintiff has not
reimbursed the Plan, as required by its terms, PX1 at pp.22-23, for the more than
$450,000 in Plan benefits paid to him. RR3 p.94,ll.3-14, p.95,l.19 – p.96,l.10,
p.126,l.5 – p.127,l.6, p.138,l.18 – p.140,l.10.
56. On April 24, 2015, Plaintiff filed in the Trial Court Plaintiff’s Motion
To Lift Stay Of Proceedings And Dismiss Stripes LLC’s Order For Arbitration
(“Motion To Lift Stay”). 20CR4095-4208.
The DSI Arbitration
57. On April 27, 2015, DSI sent a strike list to Mr. Gonzales and Sarles for
the selection of the arbitrator in the DSI arbitration (“DSI Arbitration”) that Mr.
Gonzales had demanded on March 6 and 19, 2015. 20CR4225.
58. On April 30, 2015, Plaintiff filed in the Trial Court Plaintiff’s
Application For Temporary Restraining Order For Emergency Stay Of Arbitration,
requesting the Trial Court to enjoin DSI from proceeding with the selection of the
arbitrator for the DSI Arbitration, and asserting that Plaintiff would suffer irreparable
harm if the arbitrator-selection process was not halted. 20CR4217-4234.
59. Rather than setting that Application for hearing before the Trial Court,
Plaintiff’s counsel submitted its strike list to DSI, resulting in the appointment on
May 4, 2015 of Plaintiff’s first choice, Robert “Bob” Black in Beaumont, a former
- 16 - President of the State Bar (“Arbitrator Black”). CR4756-4760; RR3 p.20,ll.9-17;
see RR3 p.30,l.24 – p.31,l.11. Plaintiff has never filed any objection to the
appointment of Arbitrator Black. PX4d; CR3 p.20,ll18-24; see CR3 p.31,ll.12-18.
60. On April 30, 2015, Stripes filed in the DSI Arbitration Respondents’
Original Answer And Counterclaims, with Stripes asserting a counterclaim against
Plaintiff for breach of the Election And Arbitration Agreement and the Plan asserting
a counterclaim for recovery of its more than $450,000 that Plaintiff’s counsel failed
to remit to the Plan after Plaintiff’s $6 million settlement with Merrell and Powell.
20CR4613-4621; DX10; RR3 p.136,l.25 – p.137,l.6. The Plan non-suited its Plea
in Intervention in the Trial Court the same day. 20CR4237-4238.
61. On May 5, 2015, the Respondents in the DSI Arbitration filed
Respondents’ Motion To Determine The Enforceability Of The Parties’ Election
And Arbitration Agreement, 20CR4622-4629, and on May 8, 2015, Arbitrator Black
set a briefing schedule on it. PX4.
Plaintiff’s Applications to Enjoin the DSI Arbitration
62. On May 8, 2015, Plaintiff filed in the Trial Court Plaintiff’s First
Amended Application For Ex Parte Temporary Restraining Order For Emergency
Stay Of Arbitration And Application For Temporary Injunction, 20CR4605-4633,
which Nueces County Court at Law No. 4 Judge Mark Woerner granted on May 8,
2015. 20CR4603-4604. Three days later, on May 11, 2015, Plaintiff filed the
- 17 - verification by attorney Todd Hunter, Jr. to that First Amended Application, which
had already been granted on May 8, 2015. 20CR4634.
63. On May 19, 2015, the Trial Court extended the Temporary Restraining
Order, 20CR5157-5158, without any motion filed by Plaintiff and without any
showing of good cause or consent by Stripes as required by Rule 680. RR2 pp.4-9.
64. At midnight on Memorial Day, May 25, 2015, Plaintiff filed Plaintiff’s
Verified Fifth Amended Petition. 21CR5174-5191. Early the next morning,
Plaintiff filed Plaintiff’s Reply To Defendant Stripes LLC’s Response To Plaintiff’s
Application For Temporary Injunction. 21CR5192-5608.
65. At 9:00 a.m. on May 26, 2015, 20CR5157, the Trial Court started a
temporary injunction hearing that concluded on May 27, 2015. RR3; RR4.
66. The Trial Court’s May 27, 2015 Order Granting Plaintiff’s Request For
Temporary Injunction recites that there “is evidence that harm is imminent to
Plaintiff, and if the Court does not issue the temporary injunction, Plaintiff will be
irreparably injured because Plaintiff will be subject to arbitration proceedings,
motions, and hearings that will deprive him of his right to have this Court decide
arbitrability and his right to a jury trial.” 21CR5611-5612.
Stripes’ Filings in this Court
67. On May 28, 2015, Stripes filed under Section 51.016 of the Civil
Practice and Remedies Code its notice of appeal of the May 27, 2015 temporary
- 18 - injunction order. 21CR5720-5721.
68. On May 30, 2015, Stripes moved this Court to prevent the Trial Court
from proceeding with a June 4, 2015 hearing on Plaintiff’s Motion To Lift Stay,
which this Court granted on June 1, 2015. SCR10-11.
69. On June 4, 2015, this Court ordered the June 1 stay lifted, SCR12-13,
and on June 5 declined to reconsider its order. Because the Trial Court had not
conducted the hearing on Plaintiff’s Motion To Lift Stay on June 4 and the May 27
temporary injunction order stated that it expired on June 4, Plaintiff on June 4 filed
an Expedited Motion To Modify Temporary Injunction Order, SCR4-13, that
Visiting Judge Martha Huerta granted over Stripes’ objections on June 8, 2015,
SCR18-20, SRR pp.1-11, extending the temporary injunction order until July 28,
2014, SCR19, when Plaintiff’s Motion To Lift Stay is now set for hearing in the
Trial Court. SCR16-17.
70. On June 8, 2015, Stripes filed a notice of appeal of the June 8, 2015
temporary injunction order. SCR21-22.
- 19 - SUMMARY OF ARGUMENT
Stripes’ October 8, 2014 filing of its Original Answer And Application For
Order For Arbitration (“Application”) under Texas Civil Practice and Remedies
Code §171.025 mandatorily stayed this lawsuit as to Stripes. The Trial Court’s
December 2, 2014 Agreed Stay Order formalized the automatic, mandatory,
statutory stay. Pleadings and motions filed during the pendency of a stay violate it
and are void. While a mandatory stay is in effect, a court has no discretion to refuse
to recognize it, and all court actions in derogation of the stay are also void. Here,
rather than purporting to lift the stay, the May 27 and June 8, 2015 temporary
injunction orders acknowledge the continued efficacy of the stay by enjoining the
DSI Arbitration only until Plaintiff’s Motion To Lift Stay is heard by the Trial Court,
set for July 28, 2015. The Trial Court’s orders are void and should be vacated.
Texas Rule of Civil Procedure 682 requires that a plaintiff verify his
application for injunctive relief and show that he has personal knowledge of the truth
of its allegations. Plaintiff’s May 8, 2015 First Amended Application For Ex Parte
Temporary Restraining Order For Emergency Stay Of Arbitration And Application
For Temporary Injunction (“First Amended Application”) was verified only by
one of Plaintiff’s attorneys, with no personal knowledge of Plaintiff’s ability to read
English in December of 2012 when he undisputedly signed the Election And
Arbitration Agreement. Although verified by Plaintiff himself, Plaintiff’s Verified
- 20 - Fifth Amended Petition was filed and served just hours before the temporary
injunction hearing in violation of Rule 21. Without a properly verified application
before it, the Trial Court abused its discretion in entering a temporary injunction.
Neither Plaintiff’s First Amended Application nor his Verified Fifth Amended
Petition pleads a cause of action for injunctive relief against Stripes. Plaintiff’s only
purported legal grounds for injunctive relief were (1) procedural unconscionability,
(2) fraudulent inducement, and (3) concealment and misrepresentation. First, Stripes
explained before the temporary injunction hearing began that unconscionability is a
defense, not a cause of action, a point recently reiterated in Royston, Rayzor, Vickery
& Williams, LLP v. Lopez, 2015 Tex. LEXIS 622 at 9 (Tex. June 26, 2015). Second,
despite Rule 683’s requirement that a temporary injunction set forth a “detailed
explanation of the reason for the injunction’s issuance,” the Trial Court made no
finding or mention of fraudulent inducement, concealment or misrepresentation.
Third, although Plaintiff’s brother Sammy Mrayyan brought the Election And
Arbitration Agreement to Plaintiff to sign, Plaintiff expressly admitted in his
affidavit that “Sammy Mrayyan did not explain the meaning of the arbitration
agreement to me before I signed the Election And Arbitration Agreement. Sammy
Mrayyan did not explain any of the contents of the Election And Arbitration
Agreement to me before I signed it.” The evidence shows that no one from Stripes
told Plaintiff anything about the Election And Arbitration Agreement that was false,
- 21 - and there was no evidence that Plaintiff relied on anything said to him. In the
absence of pleading and proof of a cause of action for injunctive relief, the temporary
injunction order must be reversed.
The purpose of a temporary injunction is to preserve the status quo, “the last,
actual, peaceable, non-contested status which preceded the pending controversy.”
In re Newton, 146 S.W.3d 648, 651 (Tex. 2004). A temporary injunction that
destroys rather than preserves the status quo is an abuse of discretion and must be
dissolved. Ballenger v. Ballenger, 668 S.W.2d 467, 469-70 (Tex. App.—Corpus
Christi 1984, writ dism’d w.o.j.). As detailed in Paragraphs 38-42 of the Statement
Of Facts above, counsel for the Parties agreed to the Agreed Stay Order and, in lieu
of a hearing on Stripes’ Application, Plaintiff’s counsel had it entered by the Trial
Court on December 2, 2014, staying all further proceedings in this lawsuit against
Stripes. Plaintiff’s counsel then voluntarily, knowingly and unconditionally initiated
the DSI Arbitration on March 6, 2015, without asserting any challenge or defense to
the DSI arbitrator’s jurisdiction. As a result, “the last, actual, peaceable, non-
contested status which preceded the pending controversy,” was where all
proceedings against Stripes in this lawsuit were stayed and Plaintiff and Stripes were
arbitrating their claims and defense in the DSI Arbitration before Arbitrator Black.
The Trial Court’s temporary injunction prohibiting the DSI Arbitration from going
forward destroys rather than preserves the status quo and must be vacated.
- 22 - Plaintiff will not be irreparably harmed by having Arbitrator Black in the DSI
Arbitration decide whether the Election And Arbitration Agreement is enforceable.
When “clear and unmistakable evidence” exists that the parties intended for an
arbitrator to decide “gateway” questions of arbitrability like enforceability and
validity, such matters are for determination by the arbitrator, not the courts. The
Election And Arbitration Agreement expressly covers “any and all” “claims
challenging the existence, validity or enforceability of this Agreement (in whole
or in part) or challenging the applicability of this Agreement to a particular
dispute or claim.” PX2 at p.2 (emphasis in original). Such “delegation provisions”
are “clear and unmistakable evidence” of the intent to arbitrate enforceability and
validity and are fully enforceable under the FAA. See Rent-A-Center, West, Inc. v.
Jackson, 561 U.S. 63 (2010). In addition, Texas courts hold that when parties
explicitly incorporate rules that empower an arbitrator to decide such issues, the
incorporation is also “clear and unmistakable evidence” of the intent to delegate such
issues to the arbitrator. Plaintiff and Stripes undisputedly agreed to arbitrate under
the DSI Rules, DSI Rule 5(a) grants Arbitrator Black the authority to rule on any
objections to the enforceability of the Election And Arbitration Agreement, and
under DSI Rule 5(c), Plaintiff has waived any challenge to Arbitrator Black’s
jurisdiction. Having agreed to arbitrate arbitrability disputes, Plaintiff will not be
deprived of a jury right or access to the courts, because he already waived them. D.
- 23 - Wilson Constr. Co. v. McAllen Ind. Sch. Dist., 848 S.W.2d 226, 231 (Tex. App.—
Corpus Christi 1992, writ dism’d w.o.j.); In re Burton, McCumber & Cortez, LLP,
115 S.W.3d 235, 237 (Tex. App.—Corpus Christi 2003, orig. proceeding). The
temporary injunction cannot preserve rights that Plaintiff already waived.
Plaintiff also failed to establish a probable right to the injunctive relief sought.
As shown, Plaintiff has no right to have the courts decide arbitrability disputes.
Plaintiff also has no right to a jury trial simply because he asserts that he did not
understand the Election And Arbitration Agreement when he undisputedly signed it.
In the absence of fraud, Texas law holds that one who signs a contract knows and
understands its contents and is bound by its terms, Lopez, 2015 Tex. LEXIS 622 at
*8, that illiteracy or the inability to read English does not relieve him of his
agreement, that if he is unable to read the contract, he must have it read to him, that
an arbitration agreement cannot be avoided by his assertion that he did not
subjectively understand it, and that the other party has no obligation to explain the
contract to him because he is illiterate. Moreover, by knowingly accepting and
retaining over $450,000 in Plan benefits paid in reliance on the Election And
Arbitration Agreement, much of it paid while Plaintiff was represented by counsel,
Plaintiff has ratified it and is estopped to deny its enforceability. Regardless of the
Election And Arbitration Agreement, the Agreed Stay Order, as a Rule 11
agreement, independently obligates Plaintiff to arbitrate his claims against Stripes.
- 24 - The Plan, as intervenor, did not waive Stripes’ arbitration rights. The Plan’s
questioning of Dr. Snook was in furtherance of the Plan’s interest in achieving a
settlement of Plaintiff’s claims against Merrell and Powell, which it accomplished.
The temporary injunction orders do not find waiver, and Plaintiff failed to bear his
heavy burden of showing an intentional, unequivocal waiver of Stripes’ arbitration
rights.
- 25 - ARGUMENT
I. PLAINTIFF’S APPLICATIONS FOR INJUNCTIVE RELIEF AND THE ORDERS GRANTING IT ARE ALL VOID.
On October 8, 2014, when Stripes filed or “made” its Original Answer And
Application For Order For Arbitration (“Application”) under Texas Civil Practice
and Remedies Code §171.025, this lawsuit was mandatorily stayed as to Stripes. See
In re Nationwide Credit, Inc., 2009 Tex. App. LEXIS 2243 at 12 (Tex. App.—
Corpus Christi 2009, orig. proceeding)(mem. op.)(‘the trial court is compelled by
statute to stay any proceeding that involves ‘an issue subject to arbitration’ if a party
seeks an order to arbitrate”); In re Pediatrix Medical Services, Inc., 2005 Tex. App.
LEXIS 5861 at 2 (Tex. App.—Dallas 2005, orig. proceeding)(mem. op.)(“The civil
practice and remedies code provides that the trial court shall stay a proceeding that
involves an issue subject to arbitration if an application for an arbitration order is
made.”). The Trial Court’s December 2, 2014 Agreed Stay Order explains that it is
formalizing the automatic, mandatory stay imposed by Section 171.025. 1CR570.
A pleading or motion filed during the pendency of a stay violates it and is
void. See, e.g., In re Helena Chem. Co., 286 S.W.3d 492, 496-97 (Tex. App.—
Corpus Christi 2009, orig. proceeding)(collecting cases); Nautical Landings Marina,
Inc. v. First Nat’l Bank, 791 S.W.2d 293, 296 (Tex. App.—Corpus Christi 1990,
writ denied)(collecting cases). While a mandatory stay is in effect, a court has no
discretion to refuse to recognize it, and all court actions in derogation of the stay are
- 26 - also void. In re Consolidated Freightways, 75 S.W.3d 147, 149 (Tex. App.—San
Antonio 2002, orig. proceeding)(Insurance Code stay); Star-Tel, Inc. v.
Nacogdoches Telecommunications, Inc., 755 S.W.2d 146, 150 (Tex. App.—
Houston [1st Dist.] 1988, no writ)(bankruptcy stay); see also Hood v. Amarillo Nat’l
Bank, 815 S.W.2d 545, 547 (Tex. 1991)(recognizing that a trial court cannot enter a
judgment in violation of a bankruptcy stay).
Here, the temporary injunction orders do not lift the stay. See 21CR5615-
5616; SCR18-20. Instead, those orders expressly acknowledge the continued
efficacy of the stay by purporting to enjoin the DSI Arbitration only until Plaintiff’s
Motion To Lift Stay—the same stay—is heard by the Trial Court, now set for July
28, 2015. See SCR18-19; SCR16-17; 21CR5615-5616; 20CR4210-4211. As a
result of the stay, all of Plaintiff’s applications for temporary injunctive relief against
Stripes, as well as the motion to extend the temporary injunction order, SRR p.7,l.19
– p.8,l.4, were void when filed without first having the stay lifted.
The Trial Court’s void temporary injunction orders granting and extending
injunctive relief on Plaintiff’s void pleadings should be vacated by this Court without
further consideration or delay. See Consolidated Freightways, 75 S.W.3d at 154
(granting mandamus and vacating all trial court orders issued during Insurance Code
stay).
- 27 - II. IN ADDITION TO BEING VOID, PLAINTIFF’S FIRST AMENDED APPLICATION WAS ALSO NOT PROPERLY VERIFIED, AND PLAINTIFF’S VERIFIED FIFTH AMENDED PETITION WAS NOT PROPERLY BEFORE THE TRIAL COURT.
Texas Rule of Civil Procedure 682 provides that “[n]o writ of injunction shall
be granted unless the applicant therefor shall present his petition to the judge verified
by his affidavit and containing a plain and intelligible statement of the grounds for
such relief.” (emphasis added). Rule 682’s requirements are mandatory. Williams
v. Bagley, 875 S.W.2d 808, 810 (Tex. App.—Beaumont 1994, no writ). The phrase
“verified by his affidavit” means “proved to be true or correct.” In re MetroPCS
Communs., Inc., 391 S.W.3d 329, 337 (Tex. App.—Dallas 2013, orig. proceeding)
(citing City of Arlington v. Dallas-Fort Worth Safety Coach Co., 270 S.W. 1094,
1095 (Tex. Civ. App.—Fort Worth 1925, no writ)). “[T]he affidavit must show to
have been made on the personal knowledge of the affiant as to the truth of the
allegations verified.” Id. The application “must plead affirmatively the necessary
facts and not legal conclusions” and “must be direct, certain and particular.” Texas
State Board of Medical Examiners v. McKinney, 315 S.W.2d 387, 390 (Tex. Civ.
App.—Waco 1958, no writ). Although Texas Rule of Civil Procedure 14 permits
an attorney to verify pleadings, an attorney may only verify a pleading “where he
has knowledge of the facts,” and Rule 14 does not authorize an attorney “to verify
based merely on his status as counsel.” Cantu v. Holiday Inns, 910 S.W.2d 113, 116
(Tex. App.—Corpus Christi 1995, writ denied).
- 28 - Plaintiff’s May 8, 2015 First Amended Application For Ex Parte Temporary
Restraining Order For Emergency Stay Of Arbitration And Application For
Temporary Injunction, 20CR4605-4633 (“First Amended Application”), was not
“verified by his affidavit.” Instead, three days after the temporary restraining order
was entered by Judge Woerner on May 8, 2015, Plaintiff filed on May 11, 2015 the
verification by attorney Todd A. Hunter, Jr. of the already-granted First Amended
Application. 20CR4634.
In addition to this after-the-fact verification problem for the May 8 temporary
restraining order, the May 11 verification also cannot support the May 27 and June
8 temporary injunction orders, because the verification was not made by Plaintiff,
but by his attorney, Mr. Hunter. The verification is defective because it does not and
cannot demonstrate how it was “made on the personal knowledge of the affiant.”
The crux of Plaintiff’s First Amended Application, and the only purported basis for
the injunction entered on May 27 and extended on June 8, are the allegations in
Paragraph 7. Paragraph 7’s allegations cannot possibly be verified by anyone other
than Plaintiff: “While Plaintiff can read, write, and speak Arabic, his ability to read,
write, and speak English is extremely limited, and with regard to reading in English,
his ability is practically non-existent.” 20CR4606. Paragraph 7 further asserts that
“Plaintiff is unable to read the English language, and must have someone translate
anything written in said language to Arabic in order to comprehend and understand
- 29 - what is written,” 20CR4606, and it further asserts that “[t]his is true now and was
true in December 2012, when he was given the Arbitration Agreement and directed
to sign it.” 20CR4607 (emphasis added).
Lawyer Hunter’s verification fails to explain how he has personal knowledge
of Plaintiff’s English skills back in December of 2012, when Plaintiff signed the
Election And Arbitration Agreement. Mr. Hunter did not meet and begin
representing Plaintiff until sometime after September 25, 2014. 1CR516-517.
Moreover, even Plaintiff’s retained neuropsychologist expert, Dr. Pollock, testified
that, after conducting hours of interviews and testing on Plaintiff in January of 2015,
“I don’t have an opinion about whether [Plaintiff] understood [the Election And
Arbitration Agreement] or not at the time he signed it” in December of 2012. “That’s
something that I don’t have any knowledge about his functioning at that point in
time.” RR3 p.183,ll.21-25 (emphasis added). When Plaintiff’s own counsel
inquired during the temporary injunction hearing whether Dr. Pollock had an opinion
about whether his report would be consistent with Plaintiff allegedly having had
difficulty understanding at Mississippi State University, Dr. Pollock answered that
“I can’t say that it would be consistent with my report,” and that there was nothing
“that I did with [Plaintiff] that would indicate that he was having trouble with
English; but at the same time, sometimes patients don’t tell you the – the whole
picture. So I don’t know whether his English was proficient enough to be
- 30 - understanding college material or not, but I certainly know that he was
functioning at a higher cognitive level before this accident” on March 27, 2013.
RR3 at p.187,l.16 – p.188,l.6 (emphasis added). Mr. Hunter’s verification is fatally
defective, as Stripes pointed out on May 18, 2015, well before the temporary
injunction hearing began. 20CR4640.
In a last-minute effort to fix this fatal defect, Plaintiff’s Verified Fifth
Amended Petition was verified by Plaintiff himself. 21CR5182. However,
Plaintiff’s Verified Fifth Amended Petition was not filed until almost midnight on
Memorial Day, May 25, just hours before the temporary injunction hearing began,
and in violation of the December 2, 2014 Agreed Stay Order, after the agreed
scheduling order’s deadline for amending pleadings, and in violation of Texas Rule
of Civil Procedure 21. Rule 21 requires every pleading, plea, motion or application
for an order to be filed and served at least three days before a hearing on it, unless
otherwise provided by the Rules or shortened by the court. See Approximately
$1,589.00 v. State, 230 S.W.3d 871, 873-74 (Tex. App.—Houston [14th Dist.] 2007,
no pet.). Plaintiff’s untimely Verified Fifth Amended Petition cannot support the
Trial Court’s temporary injunction.
The Trial Court’s temporary injunction should be vacated by this Court
without further consideration or delay.
- 31 - III. PLAINTIFF FAILED TO PLEAD AND PROVE A CAUSE OF ACTION.
Regardless whether Plaintiff’s applications for temporary injunction are void,
improperly verified and untimely filed, they fail to establish the elements necessary
for the issuance of a temporary injunction. “A temporary injunction is an
extraordinary remedy and does not issue as a matter of right.” Butnaru v. Ford
Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)(cited in Plaintiff’s applications). As a
result, to obtain a temporary injunction under Texas law, an applicant “must plead
and prove three specific elements: (1) a cause of action against the defendant; (2) a
probable right to the relief sought; and (3) a probable, imminent, and irreparable
injury in the interim.”
Both Plaintiff’s May 8 First Amended Application and Plaintiff’s May 25
Verified Fifth Amended Petition failed to affirmatively plead the necessary facts to
set forth any cause of action against Stripes for injunctive relief. Plaintiff’s First
Amended Application did not even purport to set forth a new cause of action against
Stripes, see 20CR4605-4610, and it only made a cursory statement in Paragraph 18
that the Election And Arbitration Agreement is unconscionable. 20CR4610.
However, as Stripes pointed out in its Response on May 18, 2015—well in advance
of the temporary injunction hearing—unconscionability is a defense to an arbitration
agreement, not a cause of action. 20CR4641 (citing In re FirstMerit Bank, N.A., 52
- 32 - S.W.3d 749, 757 (Tex. 2001)(“plaintiffs are free to pursue their unconscionability
defense in the arbitral forum”)).
Plaintiff’s untimely Verified Fifth Amended Petition failed to plead a cause
of action for injunctive relief against Stripes. Even if considered, it sets forth in
Section V, entitled “Causes Of Action Against Stripes, LLC,” only two causes of
action: negligence and gross negligence. 21CR5176-5178. Its Prayer, Section XI,
requests only damages and pre-judgment and post-judgment interest. 21CR5180.
Nowhere does it request the entry of an injunction against Stripes or a stay of the
DSI Arbitration. See 21CR5174-5182. Although Section VIII, entitled “Plaintiff
Not Subject To Arbitration,” does not seek an injunction against Stripes or the DSI
Arbitration, it at least mentions a couple of causes of action in Paragraph 20:
Plaintiff contends that the arbitration provisions of the agreements upon which Stripes relies are procedurally unconscionable, were fraudulently induced, and were procured through acts of concealment and misrepresentation, the Arbitration Agreement is invalid, and therefore this Court should deny Defendant’s Application for Order for Arbitration and proceed to set this matter for trial and issue an appropriate scheduling order.
21CR5179. Even Paragraph 20, however, does not request injunctive relief, it
wholly fails to “plead affirmatively the necessary facts and not legal conclusions,”
and it is in no way “direct, certain and particular,” as required under Rule 682. Texas
State Board of Medical Examiners v. McKinney, 315 S.W.2d 387, 390 (Tex. Civ.
App.—Waco 1958, no writ).
- 33 - Moreover, even assuming arguendo that Paragraph 20 somehow pleads
(which Stripes denies) (1) procedural unconscionability, (2) fraudulent inducement,
and (3) concealment and misrepresentation, for at least three reasons such allegations
cannot satisfy the first requirement of Butnaru v. Ford Motor Co.—pleading and
proof of a cause of action—in order to support the temporary injunction against
Stripes and the DSI Arbitration.
First, as shown above, the Texas Supreme Court has made clear that
unconscionability is a defense, not a cause of action. In re FirstMerit Bank, 52
S.W.3d at 757. Just days ago, the Texas Supreme Court again reiterated that “parties
asserting defenses to arbitration clauses have the burden to prove the defenses—
including unconscionability.” Royston, Rayzor, Vickery & Williams, LLP v. Lopez,
2015 Tex. LEXIS 622 at 9 (Tex. June 26, 2015)(emphasis added).
Second, the Trial Court made no finding of fraudulent inducement,
concealment or misrepresentation. The temporary injunction orders of May 27 and
June 8 make no such finding. 21CR5615-5616; SCR18-20. Texas Rule of Civil
Procedure 683 requires that a temporary injunction set forth a “detailed explanation
of the reason for the injunction’s issuance.” Adust Video v. Nueces County, 996
S.W.2d 245, 249 (Tex. App.—Corpus Christi, 1999, no pet.). “The explanation must
include specific reasons and not merely conclusory statements.” Law Funder, LLC
v. Law Offices of Douglas A. Allison, 2014 Tex. App. LEXIS 2504, 2014 WL 895512
- 34 - (Tex. App.—Corpus Christi March 6, 2014, no pet.)(mem. op.)(citing Kotz v.
Imperial Capital Bank, 319 S.W.3d 54, 56-57 (Tex. App.—San Antonio 2010, no
pet.)). Despite Stripes’ objections, the temporary injunction orders of May 27 and
June 8 do not set forth fraudulent inducement, concealment or misrepresentation as
reasons for enjoining the DSI Arbitration. See 21CR5615-5616; SCR18-20; SRR
p.8,l.16 – p.9.,l.20.
Third, both temporary injunction orders are silent about fraudulent
inducement, concealment and misrepresentation for the simple reason that Plaintiff
presented no evidence of any of them. Plaintiff testified at the temporary injunction
hearing that he does not remember ever seeing the Election And Arbitration
Agreement, does not remember anyone from Stripes ever explaining it to him, and
does not remember anyone at Stripes ever discussing it with him. RR3 p.160,ll.3-
11. When Plaintiff signed the Election And Arbitration Agreement he did not know
anything about it. RR4 p.9,ll.3-9. Sammy Mrayyan brought the Election And
Arbitration Agreement to Plaintiff and told him to sign. RR3 p.161,ll.9-13.
However, as Plaintiff expressly admitted in his affidavit, “Sammy Mrayyan did not
explain the meaning of the arbitration agreement to [Plaintiff] before [Plaintiff]
signed the Election And Arbitration Agreement. Sammy Mrayyan did not explain
any of the contents of the Election And Arbitration Agreement to [Plaintiff] before
[Plaintiff] signed it.” RR3 p.256,ll.3-16; DX24 at ¶6. The Trial Court determined
- 35 - that these two quoted statements from Plaintiff’s affidavit are binding on him, RR3
p.258,ll.20-21, and Plaintiff’s counsel has stipulated that not just Sammy Mrayyan,
but no one explained any part of the Election And Arbitration Agreement to Plaintiff,
and that no one translated any part of it to him. RR4 p.10,ll.17-20.
Plaintiff believed that if he did not sign the Election And Arbitration
Agreement, he could not work for Stripes. RR3 p.161,ll.19-23. This is not a
misrepresentation or concealment by Stripes, because it is true—Plaintiff could not
work for Stripes if he did not sign the Election And Arbitration Agreement. Stripes
employees are required to sign the Election And Arbitration Agreement, but its
signature page gives the employee the option either to check a box and accept its
terms or to check a box and reject its terms. RR3 p.82,ll.3-12. Accepting the
Election And Arbitration Agreement’s terms accepts participation in the Plan,
eligibility for benefits and arbitration, while rejecting its terms rejects Plan
participation, benefits and arbitration. PX1 at p.1; PX2 at pp.1-2; RR3 p.84,ll.1-13.
Its signature page provides in part:
CHECK ONLY ONE OF THE FOLLOWING BOXES:
I agree to the terms of this Agreement. OR I reject the terms of this Agreement.
PX2 at p.4. Because the Election And Arbitration Agreement is optional for an
employee, accepting its terms is not a condition of employment at Stripes. RR3
p.83,l.2 – p.84,l.13. In fact, any Stripes employee who accepts the terms of the
- 36 - Election And Arbitration Agreement has 5 days after accepting it to revoke his or
her acceptance. PX2 at p.3; RR3 at p.135,l.22 – p.136,l.14.
There is simply no evidence that Stripes misrepresented or concealed anything
from Plaintiff about the Election And Arbitration Agreement before he signed it,
checked the accept box, printed his name, dated his signature, and had his brother
sign it as his witness. In fact, the only evidence is to the contrary and shows that no
one from Stripes told Plaintiff anything about the Election And Arbitration
Agreement that was false, and there was no evidence that Plaintiff relied on anything
said to him. In re Border Steel, Inc., 229 S.W.3d 825, 834-35 (Tex. App.—El Paso
2007, orig. proceeding)(“The record does not show that a material misrepresentation
was made to Juarez regarding his rights under the Plan. There is no record that
[Sammy Mrayyan] made any statement to [Plaintiff] regarding the plan. Even
assuming that [Sammy Mrayyan] misunderstood what arbitration was and did not
know that an employee gave up his right to a jury trial by agreeing to arbitrate
disputes with [Stripes], there is no record that [Plaintiff] relied on any statement
made by [Sammy Mrayyan] when [Plaintiff] agreed to the Plan. Therefore,
[Plaintiff] did not show that the Agreement was obtained by fraud, and the
Arbitration Agreement is not unenforceable on that ground.”).
In sum, Plaintiff failed to plead and prove a cause of action against Stripes.
- 37 - IV. THE TEMPORARY INJUNCTION DESTROYED THE STATUS QUO.
The purpose of a temporary injunction is to preserve the status quo. In re
Newton, 146 S.W.3d 648, 651 (Tex. 2004). Indeed, Plaintiff’s First Amended
Application purports to request maintenance of “the status quo of the parties.”
20CR4610. However, the Supreme Court defines “status quo” as “the last, actual,
peaceable, non-contested status which preceded the pending controversy.” In re
Newton, 146 S.W.3d at 651. A temporary injunction that destroys rather than
preserves the status quo is an abuse of discretion and must be dissolved. Ballenger
v. Ballenger, 668 S.W.2d 467, 469-70 (Tex. App.—Corpus Christi 1984, writ dism’d
w.o.j.).
As detailed in Paragraphs 38-42 of the Statement Of Facts above, in October
and November of 2014, Sarles and Mr. Gonzales discussed the Election And
Arbitration Agreement and staying all of the claims against Stripes, and they agreed
to the Agreed Stay Order, 1CR570-571; DX2; RR3 p.99,l.20 – p.101,l.15, agreed to
stay the proceedings in this lawsuit against Stripes, agreed to the language of the
Agreed Stay Order, and agreed to resolve any disputes between Plaintiff and Stripes
in binding arbitration before DSI. RR3 p.104,ll.5-22, p.105,ll.15-19. Mr. Gonzales
never objected to the enforceability of the Election And Arbitration Agreement and
never asserted any defense to its enforceability in his discussions with Sarles during
the negotiations that resulted in the Agreed Stay Order. RR3 p.106,l.16 – p.107,l.3.
- 38 - The Agreed Stay Order states that it is “Agreed As To Form Only,” not merely
“Approved As To Form Only.” 1CR571; DX2 at p.2; RR3 p.107,ll.8-14. Mr.
Gonzales’ partner signed the Agreed Stay Order for Plaintiff and had it filed with
and signed by the Trial Court. 1CR571; DX2 at p.2; RR3 p.107,ll.15-21. Regarding
the Agreed Stay Order, Mr. Gonzales admitted during his opening statement at the
temporary injunction hearing that “we did not contest it at that time.” RR3
p.17,ll.15-16.
The Agreed Stay Order was signed by the Trial Court on December 2, 2014.
1CR570; DX2 at p.1. It provides:
Defendant Stripes LLC having filed with its Original Answer an Application for Order for Arbitration requesting a formal written order enforcing the automatic stay imposed by Section 171.025(a) of the Civil Practice and Remedies Code on any further proceedings against Stripes LLC in this lawsuit, the Court is of the opinion that the statutory stay should be formalized by this Order. It is, therefore, ORDERED that Plaintiff Hazem Mrayyan’s claims and causes of action and all further proceedings against Defendant Stripes LLC be, and they hereby are, stayed pending resolution of these two parties’ claims, causes of action and defenses in binding arbitration before Dispute Solutions, Inc. (“DSI”) in accordance with their Election And Arbitration Agreement and the DSI Arbitration Rules.
The Agreed Stay Order was not prepared to memorialize any oral ruling by
the Trial Court on Stripes’ Application. It does not mention any hearing, argument
or evidence being presented to the Trial Court, because no hearing ever took place
on Stripes’ Application. No hearing ever took place, because Mr. Gonzales and
Sarles agreed to the Agreed Stay Order and submitted it to the Trial Court for entry
- 39 - without any need for a hearing on Stripes’ Application. Sarles considered the
Agreed Stay Order an agreed order or at least a Rule 11 agreement, and Stripes relied
on the Agreed Stay Order by not setting its Application for hearing before the Trial
Court and by not participating in discovery. RR3 p.107,l.4 – p.108,l.13,
Under the Agreed Stay Order and In re Newton, “the last, actual, peaceable,
non-contested status which preceded the pending controversy” was where:
(1) all of Plaintiff’s claims and all proceedings against Stripes in the Trial Court were stayed until the resolution of Plaintiff’s and Stripes’ claims, causes of action and defenses in binding arbitration before DSI in accordance with those parties’ Election And Arbitration Agreement and the DSI Rules, and
(2) Plaintiff was pursuing claims for damages, and only claims for damages, against Stripes in the DSI Arbitration before Arbitrator Black.
Before May 8, 2015, when Plaintiff filed Plaintiff’s First Amended Application
seeking to enjoin Stripes from proceeding with the DSI Arbitration, 20CR4605-
4633, the “last, actual, peaceable, non-contested status which preceded the pending
controversy” was Plaintiff’s claims against Stripes in the Trial Court stayed and
Plaintiff and Stripes arbitrating before Arbitrator Black in the DSI Arbitration.
Plaintiff did not, and cannot, establish the status quo as some state of affairs
before the May 8 filing of Plaintiff’s First Amended Application. On April 30, 2015,
Plaintiff had filed in the Trial Court his original Application For Temporary
Restraining Order For Emergency Stay Of Arbitration, requesting the Trial Court to
stay DSI from proceeding with the selection of the arbitrator for the DSI Arbitration
- 40 - that Plaintiff had voluntarily initiated on March 6, 2015. 20CR4217-4234. That
original Application asserted that Plaintiff would suffer irreparable harm if the
arbitrator-selection process was not halted, 20CR4220, and it stated that an
emergency stay was necessary to maintain the status quo. 20CR4221. However,
rather than setting that Application for hearing before the Trial Court, Plaintiff’s
counsel submitted its strike list to DSI, resulting in the appointment of Plaintiff’s
first choice, Arbitrator Black. CR4756-4760; RR3 p.20,ll.9-17; see RR3 p.30,l.24 –
p.31,l.11. Plaintiff never filed any objection to the appointment of Arbitrator Black
in the DSI Arbitration. PX4d; CR3 p.20,ll18-24; see CR3 p.31,ll.12-18. The “last,
actual, peaceable, non-contested status which preceded the pending controversy”
was thus Plaintiff and Stripes arbitrating in the DSI Arbitration before their selected
arbitrator, Arbitrator Black, while this lawsuit was stayed by the Agreed Stay Order.
There is no dispute that (1) Plaintiff signed the Election And Arbitration
Agreement on December 14, 2012, PX2 at p.4; RR3 p.159,ll.8-23; RR3 p.14,ll.23-
24, (2) his counsel agreed to the form of, and did not contest the entry of, the Agreed
Stay Order on December 2, 2014, RR3 p.104,ll.5-22, p.105,ll.15-19; RR3 p.17,ll.15-
16, (3) his counsel voluntarily, unconditionally and without reservation initiated the
DSI Arbitration on March 6 and 19, 2015 with full knowledge of Plaintiff’s limited
English skills, RR3 p.109,l.9 – p.111,l.21, p.113,ll.5-12, and (4) Plaintiff filed no
motion or document with the Trial Court or DSI challenging the enforceability of
- 41 - the Election And Arbitration Agreement or DSI’s jurisdiction. RR3 p.115,l.24 –
p.116,l.21.
It is also undisputed that the March 6, 2015 Demand for Arbitration sought no
relief other than damages, was unconditional, contained no reservation of Plaintiff’s
rights, asserted no objection or defense to the DSI arbitrator’s jurisdiction, and said
nothing about being filed to preserve the statute of limitations. DX4; RR3 p.112,l.6
– p.113,l.12. Similarly, Plaintiff’s March 19, 2015 electronically-filed Demand for
Arbitration was unconditional, contained no reservation of Plaintiff’s rights, asserted
no objection or defense to the arbitrator’s jurisdiction, said nothing about being filed
to preserve the statute of limitations, and made no contention that Plaintiff is not
bound by the Election And Arbitration Agreement because he could not understand
English, and Mr. Hunter made no such assertions in his conversation with Sarles
prior to its March 19th filing with DSI. DX5; RR3 p.114,l.6 – p.115,l.23.
Contrary to the arguments in Plaintiff’s untimely Reply To Defendant Stripes
LLC’s Response To Plaintiff’s Application For Temporary Injunction, 21CR5192-
5608, Plaintiff and Stripes arbitrating before Arbitrator Black was not a continuing
violation of the law, nor was it deprivation of Plaintiff’s property without due
process of law. 21CR5196-5197 (citing 8100 N. Freeway Ltd. v. City of Houston,
329 S.W.3d 858 (Tex. App.—Houston [14th Dist.] 2010, no pet.)(adult arcade
operating without permit), and Gen. Tel. Co. v. City of Wellington, 294 S.W.2d 385
- 42 - (Tex. 1956)(rates set by city for telephone exchange company prevented a fair return
on the company’s property in violation of constitutional guarantees)). Plaintiff,
Stripes, DSI and Arbitrator Black were not violating the law by proceeding with the
DSI Arbitration. Plaintiff arbitrating in the DSI Arbitration that his counsel
voluntarily, knowingly and unconditionally initiated—twice—was not deprivation
of Plaintiff’s rights without due process; rather it was simply Plaintiff honoring his
contractual obligations to arbitrate set forth in the Election And Arbitration
Agreement and the Agreed Stay Order that altered his rights by contract.
The Trial Court’s temporary injunction destroyed rather than preserved the
status quo and must be dissolved. Ballenger v. Ballenger, 668 S.W.2d at 469-70.
V. PLAINTIFF FAILED TO ESTABLISH IMMINENT, IRREPARABLE HARM.
Plaintiff also failed to establish another necessary element for the issuance of
any temporary injunction, “a probable, imminent, and irreparable injury in the
interim.” Butnaru, 84 S.W.3d at 204. Paragraph 1 of both the May 27 temporary
injunction order and the June 8 temporary injunction order states that “Plaintiff will
be irreparably injured because Plaintiff will be subject to arbitration proceedings,
motions, and hearings that will deprive him of his right to have this Court decide
arbitrability and his right to a jury trial.” 21CR5615; SCR18 (emphasis added).
However, as this court explained in D. Wilson Constr. Co. v. McAllen Ind.
Sch. Dist., 848 S.W.2d 226, 231 (Tex. App.—Corpus Christi 1992, writ dism’d
- 43 - w.o.j.), and reiterated in In re Burton, McCumber & Cortez, LLP, 115 S.W.3d 235,
237 (Tex. App.—Corpus Christi 2003, orig. proceeding), when a party contractually
agrees to arbitrate a dispute, it is not deprived of its right to a jury trial and access to
the courts, because it has already waived its right to recourse in the courts.
A. Plaintiff has no right to have the Trial Court decide arbitrability; Arbitrator Black decides all arbitrability disputes.
Under the FAA, Texas law, the Election And Arbitration Agreement and the
DSI Rules, Arbitrator Black—not the courts—decides all questions regarding the
Election And Arbitration Agreement’s enforceability or validity. The Election And
Arbitration Agreement incorporates by reference the Arbitration Procedures from
the Plan’s SPD. PX2 at p.2 of 4. The Arbitration Procedures stipulate to the
application of the FAA. PX2 at p.22.
“Under the FAA, absent unmistakable evidence that the parties intended the
contrary, it is the court rather than the arbitrator that must decide ‘gateway matters,’
such as whether a valid arbitration agreement exists.” Rio Grande Xarin, II, Ltd. v.
Wolverine Robstown, LP, 2010 Tex. App. LEXIS 5189 at *21, 2010 WL 2697145
(Tex. App.—Corpus Christi July 6, 2010, pet. dism’d)(mem. op)(citing In re Weekly
Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005))(emphasis added). However, when
“clear and unmistakable evidence” exists that the parties intended for an arbitrator
to decide “gateway” questions of arbitrability like enforceability and validity, such
matters are for determination by the arbitrator, not the courts. E.g., Rio Grande
- 44 - Xarin, II, Ltd., 2010 Tex. App. LEXIS 5189 at *21-*23. “The rule that courts usually
decide issues of arbitrability is a default rule that applies unless the contract
provides otherwise.” Ernst & Young LLP v. Martin, 278 S.W.3d 497, 500 (Tex.
App.—Houston [14th Dist.] 2009, no pet)(holding that unconscionability issue was
for the arbitrator to decide and conditionally granting writ of mandamus)(citing
Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002), First Options of
Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995), and Forest Oil Corp. v. McAllen,
268 S.W.3d 51, 61 n.38 (Tex. 2008))(emphasis added).
The Election And Arbitration Agreement provides in boldface type that the
kinds of claims that it covers include “any and all” “claims challenging the
existence, validity or enforceability of this Agreement (in whole or in part) or
challenging the applicability of this Agreement to a particular dispute or
claim.” PX2 at p.2 of 4 (emphasis in original). So-called “delegation provisions”
like this are “clear and unmistakable evidence” of the intent to arbitrate
enforceability and validity and are fully enforceable under the FAA. See Rent-A-
Center, West, Inc. v. Jackson, 561 U.S. 63 (2010)(requiring employee’s
unconscionability claim to be decided by the arbitrator); Aviles v. Russell Stover
Candies, Inc., 559 Fed. Appx. 413, 2014 U.S. App. LEXIS 6248 (5th Cir. April 4,
2014)(nonsubscriber occupational injury case; enforcing delegation provision
identical to this one between Plaintiff and Stripes); IHS Acquisition No. 131, Inc.
- 45 - d/b/a Horizon Healthcare Center at El Paso v. Iturralde, 387 S.W.3d 785, 792-93
(Tex. App.—El Paso, 2012, no pet.)(nonsubscriber occupational injury case;
enforcing delegation provision identical to this one between Plaintiff and Stripes);
IHS Acquisition No. 171, Inc. d/b/a Mesa Hills Specialty Hospital v. Beatty-Ortiz,
387 S.W.3d 799, 807-08 (Tex. App.—El Paso, 2012, no pet.)(same). 1
Plaintiff and Stripes agreed to arbitrate under the DSI Rules, PX2 at p.19,
which their counsel and the Trial Court acknowledged in the Agreed Stay Order are
applicable. 1CR570-571; DX2. Under both the FAA and Texas law, when parties
to an arbitration agreement agree to arbitrate under certain rules, they are thereafter
bound by those rules. E.g., Volt Info. Sciences, Inc. v. Board of Trustees, 489 U.S.
468, 479 (1989)(parties to an arbitration agreement may “specify by contract the
rules under which that arbitration will be conducted”); In re Oakwood Mobile
Homes, Inc., 987 S.W.2d 571, 574 (Tex. 1999)(agreement to arbitrate in accordance
1 Under Rent-A-Center, West, Inc. v. Jackson, an employee’s unconscionability challenge to an FAA-governed arbitration agreement with his employer that is not specifically aimed at the agreement’s delegation provision must be arbitrated. 561 U.S. at 67-76. During his opening statement at the temporary injunction hearing, Mr. Gonzales stated: “So the whole issue in the case and then is the enforceability of an arbitration agreement. And to put it in a nutshell, we believe that the trial court, not the arbitrator, makes that decision.” RR3 p.7,ll.14-17 (emphasis added). Later, his co-counsel, Ms. Reilly, argued during opening statement that “we say, look, this entire agreement is not valid.” RR3 p.54,ll.23-24 (emphasis added). Indeed, a word-search of the Reporter’s Record shows that only Sarles, counsel for Stripes, argued about the delegation provision in the Election And Arbitration Agreement. Similarly, Plaintiff’s First Amended Application argued only against the unconscionability of the Election And Arbitration Agreement in general, rather than the delegation provision specifically: “This emergency stay is necessary to maintain the status quo of the parties until the Court considers the existence of a valid arbitration agreement and whether or not it was unconscionable at the time it was made.” 20CR4610 (emphasis added).
- 46 - with “the applicable rules of the American Arbitration Association” made the AAA
rules binding); In re Neutral Posture, Inc., 135 S.W.3d 725, 729 (Tex. App.—
Houston [1st Dist.] 2003, orig. proceeding)(same).
DSI Rule 5(a) provides that “[t]he arbitrator shall have the power to rule on
his or her own jurisdiction, including any objections with respect to the existence,
scope or validity of the arbitration agreement.” DX3 at p.2. Both federal and Texas
courts hold that “[w]hen . . . the parties agree to a broad arbitration clause and
explicitly incorporate rules that empower an arbitrator to decide issues of
arbitrability, the incorporation serves as clear and unmistakable evidence of the
parties’ intent to delegate such issues to an arbitrator.” Rio Grande Xarin, II, Ltd. v.
Wolverine Robstown, LP, 2010 Tex. App. LEXIS 5189 at *22-*23, 2010 WL
2697145 (Tex. App.—Corpus Christi July 6, 2010, pet. dism’d)(mem. op)(quoting
Saxa v. DFD Architecture Inc., 312 S.W.3d 224, 230 (Tex. App.—Dallas 2010, pet.
denied), and citing Haddock v. Quinn, 287 S.W.3d 158, 172 (Tex. App.—Fort Worth
2009, pet. denied), Burlington Resources Oil & Gas Co. v. San Juan Basin Royalty
Trust, 249 S.W.3d 34, 39-42 (Tex. App.—Houston [1st Dist.] 2007, pet. denied),
and Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366, 1372-73 (Fed. Cir. 2006));
Momentis U.S. Corp. v. Weisfeld, 2014 Tex. App. LEXIS 8000 at 13, 2014 WL
3700697 (Tex. App.—Dallas July 23, 2014, no pet.)(mem. op.)(also quoting Saxa
and holding that “[u]nder the clear terms of the parties’ agreement, whether the
- 47 - arbitration agreement is illusory, unconscionable, or against public policy is for the
arbitrator to decide.”); see, e.g., Schlumberger Tech. Corp. v. Baker Hughes, Inc.,
355 S.W.3d 791, 803 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Aspri
Investments, LLC v. Afeef, 2011 Tex. App. LEXIS 7082 at *28 (Tex. App.—San
Antonio Aug. 31, 2011, pet. dism’d)(mem. op.); Petrofac, Inc. v. Dynmcdermott
Petrol. Ops. Co., 687 F.3d 671, 675 (5th Cir. 2012); Terminix Int’l Co. v. Palmer
Ranch Ltd., 432 F.3d 1327, 1332 (11th Cir. 2005); Contec Corp. v. Remote Solution
Co., 398 F.3d 205, 208 (2d Cir. 2005).
Under both the Election And Arbitration Agreement and the DSI Rules,
Arbitrator Black—not the courts—decides all disputes regarding the Election And
Arbitration Agreement’s enforceability or validity. Plaintiff already has waived his
right to a jury trial and access to the courts. D. Wilson Constr. Co., 848 S.W.2d at
231; In re Burton, McCumber & Cortez, LLP, 115 S.W.3d at 237. Plaintiff cannot
further waive rights that are already waived and failed to establish irreparable harm.
B. Plaintiff has waived any objection to Arbitrator Black’s jurisdiction.
Having elected in 2012 to accept the optional terms of the Election And
Arbitration Agreement and then in 2013-2014 having accepted and retained more
than $450,000 in Plan benefits paid in reliance on his acceptance of the Election And
Arbitration Agreement, much of it paid while Plaintiff was represented by counsel
who understood that the Plan was paying the benefits because Plaintiff had accepted
- 48 - the Election And Arbitration Agreement, Plaintiff no longer has a jury trial right that
can be further waived. Moreover, Plaintiff will not waive his right to object to the
jurisdiction of Arbitrator Black by participating in briefing and a hearing in the DSI
Arbitration on Stripes’ Motion To Determine The Enforceability Of The Parties’
Election and Arbitration Agreement, 20CR4622-4629, because Plaintiff on March 6
and 19, 2015 already waived his right to object to Arbitrator Black’s jurisdiction
when Plaintiff twice voluntarily demanded arbitration to initiate the DSI Arbitration.
DSI Rule 5(c) provides that “[a] party must object to the jurisdiction of the
arbitrator or to the arbitrability of a claim or counterclaim no later than the filing of
its Answer to the Demand or Counterclaim that gives rise to the objection.” DX3 at
p.2. DSI Rule 5(c) is identical to AAA Employment Arbitration Rule 6(c), RR3
p.109,ll.3-8, which Texas courts have enforced, holding that failure to timely object
in accordance with the rule constitutes waiver. See Thomas Petroleum, Inc. v.
Morris, 355 S.W.3d 94, 98 (Tex. App.—Houston [1st Dist.] 2011, pet. denied), cert.
denied, 133 S. Ct. 210 (2012); Ouzene v. Haynes, 2012 Tex. App. LEXIS 2888 at
*10, 2012 WL 1249420 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)(mem.
op.). It is undisputed that Plaintiff has never challenged the DSI arbitrator’s
jurisdiction. RR3 p.115,l.24 – p.116,l.21. Under DSI Rule 5(c), Plaintiff has thus
waived any challenge to Arbitrator Black’s jurisdiction over arbitrability disputes
like this one set, improperly, for hearing on July 28, 2015 before the Trial Court.
- 49 - Plaintiff also waived any objection to the DSI arbitrator’s jurisdiction by
voluntarily, knowingly and unconditionally submitting to DSI on March 6 and 19,
2015 two Demands for Arbitration, DX4 and DX5, neither of which made any
objection whatsoever to the DSI’s arbitrator’s jurisdiction. Plaintiff then
participated in the selection of Arbitrator Black and made no objection to his
appointment. PX4d; CR3 p.20,ll18-24; see CR3 p.31,ll.12-18. See In re Hospitality
Employment Group, 234 S.W.3d 832, 835 (Tex. App.—Dallas 2007, orig.
proceeding)(holding that had injured employee of nonsubscriber intended to
challenge part of the arbitration agreement, “she should have done so prior to
participating in the arbitration proceedings.”); Circuit City Stores v. Curry, 946
S.W.2d 486, 489 (Tex. App.—Fort Worth 1997, orig. proceeding)(employee’s
arbitration request and participation in selecting an arbitrator established existence
of arbitration agreement); Pilgrim Investment Corp. v. Reed, 156 Wis. 2d 677, 686,
457 N.W.2d 544, 548 (Wis. Ct. App.)(“Absent a reservation or objection to the
arbitration process, when one party participates in preliminary arbitration procedures
preparatory to the hearing on the merits, that party is signaling to the other side that
full participation in the process is intended.”), review denied, 458 N.W.2d 533 (Wis.
1990).
The Trial Court’s temporary injunction orders do not prevent imminent,
irreparable harm. Plaintiff cannot now obtain a judicial “undoing” of the waivers
- 50 - that his own signature on the Election And Arbitration Agreement and his attorneys’
signatures on the Agreed Stay Order and on his two voluntary DSI Demands for
Arbitration have effected. Any “harm” purportedly suffered by arbitrating under the
Election And Arbitration Agreement and the DSI Rules is not “imminent;” because
it already occurred before the temporary injunction hearing began.
VI. PLAINTIFF FAILED TO PROVE A PROBABLE RIGHT TO THE INJUNCTIVE RELIEF SOUGHT.
Plaintiff also failed to establish another necessary element for the issuance of
any temporary injunction, “a probable right to the relief sought.” Butnaru, 84
S.W.3d at 204. Paragraph 1 of both the May 27 and June 8 temporary injunction
orders states that “Plaintiff will be irreparably injured because Plaintiff will be
subject to arbitration proceedings, motions, and hearings that will deprive him of his
right to have this Court decide arbitrability and his right to a jury trial.”
21CR5615; SCR18 (emphasis added). However, Plaintiff failed to prove either (1)
a probable right to judicial determination of arbitrability disputes under the Election
And Arbitration Agreement, or (2) a probable right to trial by jury.
A. Plaintiff failed to prove that the courts have the right to decide arbitrability disputes.
As shown above in Section V, the delegation provision of the Election And
Arbitration Agreement requires that all disputes about the alleged unconscionability
of the Election And Arbitration Agreement be arbitrated. This delegation provision
- 51 - is absolutely enforceable under the FAA. See Jackson, 561 U.S. 63 (requiring
employee’s unconscionability claim to be decided by the arbitrator); Aviles, 2014
U.S. App. LEXIS 6248 (enforcing delegation provision identical to this one between
Plaintiff and Stripes); Iturralde, 387 S.W.3d at 792-93 (same); Beatty-Ortiz, 387
S.W.3d at 807-08 (same).
Moreover, the Election And Arbitration Agreement’s incorporation of DSI
Rule 5(a) independently constitutes “clear and unmistakable” evidence that
arbitrability disputes are to be decided by the DSI arbitrator. Rio Grande Xarin, II,
Ltd., 2010 Tex. App. LEXIS 5189 at *22-*23; Saxa, 312 S.W.3d at 230; Haddock,
287 S.W.3d at 172; Burlington Resources Oil & Gas Co., 249 S.W.3d at 39-42;
Momentis U.S. Corp., 2014 Tex. App. LEXIS 8000 at 13.
Having failed even to assert, much less establish, the unconscionability of the
delegation provision or of DSI Rule 5, see footnote 1 supra, Plaintiff has failed to
raise any argument that would authorize the Trial Court rather than Arbitrator Black
to decide the Election And Arbitration Agreement’s enforceability.
B. Plaintiff failed to prove that he has the right to trial by jury.
It is undisputed that Plaintiff signed the Election And Arbitration Agreement.
PX2 at p.4; RR3 p.159,ll.8-23; RR3 p.14,ll.23-24. However, in an attempt to avoid
his obligation to arbitrate his claims against Stripes, Plaintiff’s First Amended
Application conclusorily asserted in Paragraph 14 that “[i]t is probable that Plaintiff
- 52 - will prevail on the merits of his objections and challenges to the validity of the
subject arbitration agreement and whether it is an unconscionable agreement.”
20CR4609. Plaintiff’s unconscionability argument, in turn, is based solely on
Plaintiff’s assertion that the Election And Arbitration Agreement is unenforceable
as procedurally unconscionable, because Plaintiff is allegedly “unable to read the
English language, and must have someone translate anything written in said
language to Arabic in order to comprehend and understand what is written.”
Regardless, under Texas law, as a matter of law, Plaintiff’s asserted English
deficiency does not render the Election And Arbitration Agreement procedurally
unconscionable. The undisputed facts also show that Plaintiff has no English
deficiency.
1. The Election And Arbitration Agreement is enforceable.
The Texas Supreme Court has repeatedly held that there is nothing per se or
inherently unconscionable about arbitration agreements. Royston, Rayzor, Vickery
& Williams, LLP v. Lopez, 2015 Tex. LEXIS 622 at *8 (Tex. June 26, 2015); In re
Palm Harbor Homes, Inc., 195 S.W.3d 672, 678 (Tex. 2006); In re
AdvancePCSHealth LP, 172 S.W.3d 603, 608 (Tex. 2005); In re Oakwood Mobile
Homes, Inc., 987 S.W.2d 571, 574 (Tex. 1999); EZ Pawn Corp. v. Mancias, 934
S.W.2d 87, 90 (Tex.1996).
- 53 - In Morrison v. Insurance Company of North America, 69 Tex. 353, 359, 6
S.W.605, 606 (1887), explained a bedrock principle of Texas law:
Every person having capacity to make a contract, in the absence of fraud, misrepresentation or concealment, must be held to have known what the words used in a contract made by him were, and to have known their meaning; and he must also be held to have known and fully comprehended the legal effect of the contract which the words used made.
Just last month, in a case involving an arbitration agreement, the Texas Supreme
Court reiterated this fundamental “principle that absent fraud, misrepresentation, or
deceit, one who signs a contract is deemed to know and understand its contents and
is bound by its terms.” Lopez, 2015 Tex. LEXIS 622 at *8.
Applying this principle, Texas law simply rejects the proposition that an
arbitration agreement’s enforcement can be avoided by a signatory’s assertion that
he did not subjectively understand arbitration. E.g., In re McKinney, 167 S.W.3d
833, 835 (Tex. 2005)(absent fraud, misrepresentation or deceit, parties are bound by
terms of the contract they signed, regardless of whether they read it or thought it had
different terms”); Mancias, 934 S.W.2d at 90 (employee’s claim that he did not read
and understand arbitration clause did “not excuse him from arbitration”); Cantella
& Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996)(even though signatory did not
know of arbitration provision when he signed contract, the legal presumption that a
party knows the contents of the agreements it signs required provision’s
enforcement); D. Wilson Constr. Co. v. McAllen Indep. School Dist., 848 S.W.2d
- 54 - 226, (Tex. App.—Corpus Christi 1992, writ dism’d w.o.j.)(“a party who signs a
contract is presumed to know its contents”); In re Big 8 Food Stores, Ltd., 166
S.W.3d 869, 878 (Tex. App.—El Paso 2005, orig. proceeding)(“The undisputed
evidence is that she signed the agreement, was injured on the job and actually
received and accepted benefits under the plan. The fact that she now contends that
she did not understand a specific clause or term is immaterial to the validity of the
agreement.”).
Similarly, for more than 80 years, Texas law has also held that illiteracy or
the inability to read English does not relieve a contracting party of the consequences
of his agreement; if he is unable to read the contract, he must have it read to him.
E.g., Indemnity Ins. Co. of North America v. W.L. Macatee & Sons, 129 Tex. 166,
170-71, 101 S.W.2d 553, 556-57 (1937)(holding that facts that paymaster did not
explain or point out assignment of wage claims on back of payroll sheets and that
workmen did not know contents of assignment or consciously intend to assign their
claims did not prevent valid assignments from being made, even by illiterate
workmen, because one is presumed as a matter of Texas law to intend what he signs);
De Villagomes v. First Nat’l Bank-Edinburg, 2005 Tex. App. LEXIS 6175 (Tex.
App.—Corpus Christi 2005, pet. denied)(mem. op.)(“a party’s failure to read an
instrument before signing it is not a ground for avoiding it. . . . This is true even in
the case of illiteracy or an inability to read English.”)(citing Vera v. North Star
- 55 - Dodge Sales, Inc., 989 S.W.2d 13, 17 (Tex. App.—San Antonio 1998, no pet), and
Tamez v. Southwestern Motor Transp., Inc., 155 S.W.3d 564, 570 (Tex. App.—San
Antonio 2004, no pet.)(“even though English was not his first language, we must
presume, as a matter of law, that [appellant] read and understood the contract, unless
he was prevented from doing so by trick or artifice.”)); Nguyen Ngoc Giao v. Smith
& Lam, P.C., 714 S.W.2d 144, 146 (Tex. App.—Houston [1st Dist.] 1986, no
writ)(binding Vietnamese client to fee agreement because, “if a person is unable to
read the contract, he must have it read to him’).
Texas law also has long rejected the proposition that one party to a contract
owes a duty to explain the contract to an illiterate or English-illiterate party. E.g.
Associate Employers Lloyds v. Howard, 156 Tex. 277, 281, 294 S.W.2d 706, 708
(1956)(workers’ compensation insurer held to have had no duty to send explanatory
letter or otherwise explain to injured, illiterate employee Compromise Settlement
Receipt accompanying check that employee cashed thinking it was for past due
compensation benefits); Guzman v. Inter National Bank, 2008 Tex. App. LEXIS
2034, 2008 WL 739828 at n.2 (Tex. App.—Corpus Christi 2008, no pet.)(mem. op.)
(“Appellant also argues that because she does not read or speak English, INB had
the duty to take affirmative steps to ensure adequate understanding. We have never
recognized such a duty.”).
- 56 - Moreover, as shown in Paragraphs 2-7 of the Statement Of Facts, Plaintiff is
well educated and is not illiterate in English. It is impossible to believe that Plaintiff
could have passed his Business Administration courses and an English Composition
course at Mississippi State University, or successfully leased, borrowed money for,
managed and sold his Chevron gas station business, if he really was illiterate in
English. Plaintiff gave his deposition in this case in English and without the use of
an interpreter, RR3 p.90,l.11 – p.91,l.8, and then neither Plaintiff nor his attorney
made any changes to Plaintiff’s deposition transcript testimony. DX23. Plaintiff
has twice verified in English his interrogatory answers in this case. DX19 at p.14;
DX22 at p.5.
Although “Sammy Mrayyan did not explain the meaning of the arbitration
agreement to [Plaintiff] before [he] signed the Election And Arbitration Agreement,”
and “Sammy Mrayyan did not explain any of the contents of the Election And
Arbitration Agreement to [Plaintiff] before [he] signed it,” RR3 p.256,ll.3-16; DX24
at ¶6, Plaintiff failed to establish that his brother, Sammy Mrayyan, could not have
explained the same Election And Arbitration Agreement that he had signed two
months before, DX7 at p.4; RR3 p.132,l.21 – p.133,l.7, and that had been explained
to Sammy Mrayyan by his friend and Area Manager, Kamal Ghanem. RR4 p.49,ll.3-
14; RR3 p.79,ll.1-9. Plaintiff simply proved that he never asked Sammy Mrayyan,
Kamal Ghanem or anyone else to explain the Election And Arbitration Agreement,
- 57 - as Plaintiff was required to do under Texas law if he did not understand it or could
not read it, and given the undisputed facts about Sammy Mrayyan’s U.S. educational
and occupational background in Paragraphs 8-10 of the Statement Of Facts, it would
be an abuse of discretion to determine that Sammy Mrayyan could not have
explained the Election And Arbitration Agreement to Plaintiff had Plaintiff asked
him to do so.
2. Plaintiff ratified the Election And Arbitration Agreement.
Even if, as Plaintiff now belatedly contends, the Election And Arbitration
Agreement were unconscionable or otherwise voidable (all of which Stripes
vigorously denies), it is fully enforceable against Plaintiff. Plaintiff knew that the
Plan paid the official billing statements from the hospitals that he attended and for
the treatment that he received, RR3 p.235,l.11 – p.236,l.11; DX19 at pp.9-10; DX20,
and that he was receiving a weekly check from the Plan. RR3 p.236,l.12 –
p.237,l.24; DX20 at second page. Even if Plaintiff were to contend that he did not
understand how or why the Plan paid these benefits, his attorney, Mr. Burkett
certainly understood. See Statement Of Facts at ¶¶30-33. As a matter of law, the
notice and knowledge of Mr. Burkett is imputed to Plaintiff. See Rogers v. B&R
Development, Inc., 523 S.W.2d 15, 18 (Tex. Civ. App.—Fort Worth 1975, no
writ)(“Whether [the client] knew each of these items is immaterial because such
knowledge that his attorney had is imputed to him.”); Westfield Dev., Inc. v.
- 58 - Rubashkin, 2007 Tex. App. LEXIS 1154 at *13-*14 (Tex. App.—Houston [1st
Dist.] 2007, no pet.)(mem. op.)(“Westfield, the principal, is bound by the knowledge
of its agent, attorney Kelly Newman”).
Under Texas law, Plaintiff’s undisputed receipt, acceptance and retention of
over $450,000 in Plan benefits, much of which was paid while Plaintiff was
represented by counsel, ratified the Election And Arbitration Agreement and estops
him from now denying its enforceability. E.g., Big 8 Food Stores, 166 S.W.3d at
878 (plaintiff employee who claimed she did not understand arbitration agreement
ratified it by accepting and retaining “substantial benefits” received as result of
having signed arbitration agreement); Border Steel, Inc., 229 S.W.3d at 835 (same);
In re HEB Grocery Co., L.P., 299 S.W.3d 393, 399-400 (Tex. App.—Corpus Christi
2009, orig. proceeding) (rejecting the employee’s invalidity argument and noting
that he “sought and received employee benefits under the Plan prior to filing suit
against HEB”); Bustos v. Intex Aviation Services, Inc., 1996 U.S. Dist. LEXIS 14475
(N.D. Tex. 1996) (plaintiff employee’s acceptance of $3,000 in benefits from
nonsubscriber’s ERISA plan constituted her ratification as a matter of law of plan’s
waiver agreement); Land Title Company of Dallas, Inc. v. F.M. Stigler, Inc., 609
S.W.2d 754, 756 (Tex. 1980) (“Stigler’s refusal to tender back the down payment
funds, after learning of the subordination agreement and the source of the money,
amounted to an affirmance of Russell’s unauthorized act and constituted ratification
- 59 - of the subordination agreement.”); Barker v. Roelke, 105 S.W.3d 75, 85 (Tex.
App.—Eastland 2003, pet. denied)(uncontroverted evidence of acts inconsistent
with intent to avoid a contract had effect of ratifying contract as a matter of law).
3. The Agreed Stay Order obligates Plaintiff to arbitrate.
As detailed in Paragraphs 38-42 of the Statement Of Facts, Sarles and Mr.
Gonzales discussed the Election And Arbitration Agreement and staying all of the
claims against Stripes, and they agreed to the Agreed Stay Order, 1CR570-571;
DX2; RR3 p.99,l.20 – p.101,l.15, p.104,ll.5-22, p.105,ll.15-19. The Agreed Stay
Order states that it is “Agreed As To Form Only,” not merely “Approved As To
Form Only.” DX2 at p.2 (emphasis added); RR3 p.107,ll.8-14. Mr. Gonzales’
partner signed the Agreed Stay Order for Plaintiff and had it entered by the Trial
Court. 1CR571; DX2 at p.2; RR3 p.107,ll.15-21. The Agreed Stay Order was not
prepared to memorialize any oral ruling by the Trial Court on Stripes’ Application.
It does not mention any hearing, argument or evidence being presented to the Trial
Court, because it was presented to the Trial Court for entry in lieu of any hearing on
Stripes’ Application. Plaintiff presented no evidence to the contrary.
Besides being an order of the Trial Court, the Agreed Stay Order constitutes
a Rule 11 agreement, having satisfied all of the requirements of Rule 11 by being
“in writing, signed by the attorneys for both parties and by the judge, and filed with
the court’s papers as part of the record.” Trevino v. Houston Orthopedic Center, 831
- 60 - S.W.2d 341, 344 (Tex. App.—Houston [14th Dist.] 1992, writ denied). As, at a
minimum, a valid Rule 11 agreement, the Agreed Stay Order independently
obligates Plaintiff to arbitrate his claims against Stripes—even if the Election And
Arbitration Agreement is somehow unenforceable. The requisites of Rule 11 having
been satisfied, the Trial Court had only the ministerial duty to enforce the Agreed
Stay Order as written. See Guynn v. Corpus Christi Bank & Trust, 580 S.W.2d 902,
906 (Tex. Civ. App.—Corpus Christi 1979, writ ref’d n.r.e.). As a result, the Trial
Court had no discretion to not enforce the Agreed Stay Order.
VII. STRIPES DID NOT WAIVE ITS ARBITRATION RIGHTS.
As shown in Paragraphs 49-51 of the Statement Of Facts, to protect its
$450,000 subrogation interest, the Plan intervened in this lawsuit pursuant to Texas
Rule of Civil Procedure 60, not Rule not Rule 40. See In re Union Carbide Corp.,
273 S.W.3d 152, 156 (Tex. 2008)(“Permissive joinder and intervention are
authorized and permitted by separate rules, and the rules provide different processes
for addressing the different situations.”). The Plan’s interests were its own and
adverse in many respects to Plaintiff’s and Powell’s/Merrell’s interests. See Union
Carbide, 273 S.W.3d at 155 (intervenors “interject their interests into a pending suit
to which the intervenors have not been invited”); Akins v. Citizens Nat’l Bank, 217
S.W.2d 199 (Tex. Civ. App.—El Paso 1948, writ ref’d)(lien holder had right to
intervene to protect his interest, adverse to both plaintiff and defendant).
- 61 - As shown in Paragraphs 52-55 of the Statement Of Facts, Sarles’ questioning
of Plaintiff’s life care plan expert, Dr. Snook, was done expressly as the
representative of the Plan, not Stripes. PX5 at p.2 and p.64. Sarles’ questioning of
Dr. Snook assisted in reducing Plaintiff’s $15 million demand and obtaining the $6
million policy-limits settlement between Plaintiff and Merrell and Powell—a
settlement that was in the Plan’s interest, even if the Plan has not yet recovered its
$450,000 subrogation lien out of the settlement proceeds. A strong presumption
against waiver of arbitration rights exists under Texas law that imposes a “heavy
burden of proof” on the party asserting it to show intentional waiver, a question of
law. In re Bank One, 216 S.W.825, 827 (Tex. 2007); In re D. Wilson Constr. Co.,
196 S.W.3d 774, 783 (Tex. 2006); In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 763
(Tex. 2006); In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex. 1998).
Plaintiff has failed to show how Stripes, which asked Dr. Snook nothing,
intentionally waived Stripes’ arbitration rights. The Trial Court’s temporary
injunction makes no finding or mention of waiver, and it cannot be supported by an
unproved allegation that Sarles, expressly appearing on behalf of the Plan and shown
to be pursuing the Plan’s interest in achieving settlement, somehow was instead
really pursuing Stripes’ defense in the DSI Arbitration. See Perry Homes v. Cull,
258 S.W.3d 580, 593 (Tex. 2008)(waiver can be implied from a party’s conduct, but
the party’s conduct must be unequivocal).
- 62 - CONCLUSION
The Trial Court abused its discretion in entering the May 27 and June 8, 2015
temporary injunction orders. Plaintiff’s applications for injunctive relief and the
Trial Court’s injunction orders were all filed in violation of the stay imposed by
Section 171.025 of the Texas Civil Practice and Remedies Code and the Agreed Stay
Order and are void. Plaintiff’s applications for the temporary injunction were not
properly verified and properly filed to be before the Trial Court. Plaintiff failed to
plead and prove a cause of action for injunctive relief against Stripes. The temporary
injunction orders destroyed rather than preserved the status quo between Plaintiff
and Stripes. Plaintiff failed to establish imminent, irreparable harm, because all
arbitrability disputes are to be decided by the DSI arbitrator under the Election And
Arbitration Agreement and the DSI Rules. Having voluntarily initiated the DSI
Arbitration without preserving any right to challenge the DSI arbitrator’s
jurisdiction, Plaintiff has waived any objection under DSI Rule 5. Plaintiff failed to
prove that the courts decide arbitrability, failed to prove that the Election And
Arbitration Agreement is unenforceable, failed to show how Plaintiff’s knowing
acceptance of $450,000 in Plan benefits did not constitute ratification and estoppel,
and failed to articulate an explanation why the Agreed Stay Order does not
independently obligate Plaintiff to arbitrate as a Rule 11 agreement. Finally,
Plaintiff’s waiver argument fails to support the entry of the temporary injunction.
- 63 - PRAYER
For these reasons, Appellant requests that this Court vacate or reverse in all
respects the Trial Court’s temporary injunction orders of May 27 and June 8, 2015,
order all further proceedings before the Trial Court stayed pending resolution of the
Parties’ claims and defenses in binding arbitration under the Election And
Arbitration Agreement and DSI Rules in the DSI Arbitration before Arbitrator
Black, and award Appellant its costs on appeal, together with such other and further
relief that the Court deems appropriate.
Dated: July 6, 2015 Respectfully submitted,
/s/ Gary D. Sarles . Gary D. Sarles State Bar No. 17651100 SARLES & OUIMET 370 Founders Square 900 Jackson Street Dallas, Texas 75202 Telephone: (214) 573-6300 Facsimile: (214) 573-6306 gsarles@sarleslaw.com
ATTORNEYS FOR APPELLANT
CERTIFICATE OF SERVICE
In compliance with Texas Rule of Appellate Procedure 9.5, I hereby certify that a true and correct copy of the foregoing Appellant’s Brief was served on counsel for Appellee via Eservice on this 6th day of July, 2015.
/s/ Gary D. Sarles . Gary D. Sarles
- 64 - CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. PROC. 9.4(i)(3)
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that Appellees’ Brief complies with the word and page limitations of Texas Rule of Appellate Procedure 9.4(i)(2). According to the word count of the Microsoft Word 2003 word-processing system, this brief contains 14,950 words, excluding the parts of the brief exempted by Texas Rule of Appellate Procedure 9.4(i)(1).
- 65 - NO. 13-15-00246-CV
IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS AT CORPUS CHRISTI/EDINBURG, TEXAS
On Appeal from County Court at Law Number One of Nueces County, Texas The Honorable Robert J. Vargas, Judge Presiding
APPELLANT’S APPENDIX
INDEX Tab No. Description Record Citation
1 Order Granting Plaintiff’s Request For Temporary Injunction 21CR5611-5612
2 Order Modifying Plaintiff’s Temporary Injunction Order SCR18-20
3 Texas Civil Practice and Remedies Code Section 171.025 -
4 Election And Arbitration Agreement and incorporated PX2 Arbitration Procedures from the Summary Plan Description
5 Order Granting Stripes LLC’s Application for Order for Arbitration DX2
6 Dispute Solutions, Inc. Arbitration Rule 5 DX3 at p.2
7 Hazem Mrayyan’s Demand for Arbitration, March 6, 2015 DX4
8 Demand for Arbitration Form, March 19, 2015 DX5 , --,
i •~
·~
Cause No. 2013-CCV-61910-1
HAZEM MRAYYAN 01 A -, ! IN THE COUNTY COURT ~ lr v. § AT LAW N0.1 § ERIC SCOTT POWELL, MERRELL LEASE SERVICE, INC. AND STRIPES LLC : & DEFENDANTS. § NUECES COUNTY, TEXAS
ORDERc.;;:,;.;; GRANTING PLAINTIFF'S REQUEST .
1. After considering Plaintiff's, Hazem Mrayyan's, Plaintiff's First c, 'Annli _,, th<> nlc."rl;nn" thc. fnr- '"'In;, ·~ .0..
evidence, and arguments of counsel, the Court finds there is evidence that harm
is imminent to Plaintiff, and if the Court does not issue the temporary injunction,
--pfamfiff w11fl:)e IrreparablY imured because Plaintiff will be subiect to arbitration
proceedings, motions, and hearings that will deprive him of his right to have this
Court decide arbitrability and his right to a jury trial. The Court is of the opinion . . . . . LrTaLFTalTlTITT . TOr a Lt:IIIJ.IUidl y lnJUru.;uull (0 Stay arulli
GRANTED.
? It ;.,. , IJR th"t thA r.l.,rk nf r.n11rl <::h"ll ;.,..,., u> " Writ
of Injunction pending final hearing on June 4, 2015, enjoining Defendant Stripes,
LLC or any of its officers, agents, servants, employees, attorneys,
represemalives, or any person 1n act1ve concert or part1c1pat1on w1th it who
receives actual notice of this Order by personal service or otherwise are hereby
stayed from participating or engaging in any and all arbitration proceedings,
TAB 1 5611 , . • . --- ---- ------- ---
' I
''I
filings, motions, and hearings with Dispute Solutions, Inc. where Stripes, LLC and
Hazem Mrayyan are both named parties to a cause or matter. I+ . f, .. ~ +h~+ ~n.-1 ~11 .~. 'l riO I ., " '" ' filings, motions, and hearings are hereby stayed, by way of the Writ of
Injunction, with Dispute Solutions, Inc. where Stripes, LLC and Hazem Mrayyan
are both named parties to a cause or matter.
4. It is therefore ORDERED that the clerk issue notice to Defendant
.:>lllfJt::;, LL\J llli:lli:l llli:ll Ull l i l t : ' " " ' " ' " ll; >;t:LIUI ..JUIIt: "+, &.U lv i:ll IU.UU <:1.111.
5. It is therefore ORDERED that Plaintiff Hazem Mrayyan shall, prior
to the issuance of the in'unction file with the Clerk a bond executed b him in
the sum of .~l£f,_L_f,L__ _, $_
and conditioned as required by law.
SIGNED on :z/ra,qI 'J-v7 / , 2015, at-t.J¥'a.m./p.iil.
' {
\.. _........ { /
TAB 1 5612 Filed 6/4/2015 9:11:55 PM Anne Lorentzen • District Clerk Nueces County, Texas
. HAZEM MRAYYAN § IN THE COUNTY COURT . PLAINTIFF, § § v. § AT LAW N0.1 § § § . STRIPES, LLC § DEFENDANTS. § NUECES COUNTY, TEXAS
ORDER MODIFYING PLAINTIFF'S TEMPORARY INJUNCTION ORDER
After con·s idering Plaintiff's Expedited Motion to Modify Temporary
Injunction Order to modify the order issued on May 27, 2015 the arguments of
counsel, and the evidence presented,· the Court GRANTS the motion and
ORDERS that the Temporary Injunction Order issued on May 27, 2015 is
modified as follows:
1. After considering Plaintiff's, Hazem Mrayyan's, Plaintiffs First
Supplemental Application for Temporary Injunction, the pleadings, the affidavits,
evidence, and arguments of counsel, the Court finds there is evidence that harm
is imminent to Plaintiff, and if the Court does not issue the temporary injunction,
Plaintiff will be irreparably injured because Plaintiff will .be subject to arbitration
proceedings, motions, ~nd hearings that will deprive him of his right to have this
Court decide arbitrability and his right to a jury trial. The Court is of the opinion
that Plaintiffs request for a temporary injunction to stay arbitration proceedings is
2. It is therefore ORDERED that the Clerk of Court shall issue a Writ
TAB 2 18 • of Injunction pending a "trial on the merits" is held and this Court has the
opportunity to consider Plaintiffs Motion to Lift Stay of Proceedings and Dismiss
S~ripes, LLC's Order for Arbitration, as permitted by the Thirteenth Court of
Appeals.
3. It is therefore ORDERED that the Clerk of Court shall issue a Writ
of Injunction enjoining Defendant Stripes, LLC or any of its officers, agents,
servants, .employees, attorneys, representatives, or any person in active concert
or participation with it who receives actual notice of this Order by personal
service or otherwise are hereby stayed from participating or engaging in any and
all arbitration proceedings, filings, motions, and hearings with Dispute Solutions,
Inc. where Stripes, LLC and Hazem Mrayyan are both named parti~s to a cause
or matter.
4. It is further ORDERED that any and all arbitration proceedings,
filings, motions, and hearings are hereby stayed, by way of the WrU of
Injunction, with Dispute Solutions, Inc. where Stripes, LLC and Hazem Mrayyan
5. It is therefore ORDERED that the clerk issue notice to Defendant
Stripes, LLC that a ~rial on the merits is set for July-28, 2015 at 9:00 a.m . .
6. It is therefore ORDERED that Plaintiff Hazem ·Mrayyan shall, prior·
to the issuance of the injunction; file with the Clerk a bond· executed by him in
the sum of $500.00, payable to Defendant Stripes, LLC approved and
conditioned as required by law if not already done.
' .
TAB 2 19 •
~I.GNED on._h~/.__~7f---' 2015, at 9:10 a.m./p.m.
PRESIDING JUDGE
TAB 2 20 Tex. Civ. Prac. & Rem. Code § 171.025 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4).
Texas Statutes and Codes > CIVIL PRACTICE AND REMEDIES CODE > TITLE 7. ALTERNATE METHODS OF DISPUTE RESOLUTION > CHAPTER 171. GENERAL ARBITRATION > SUBCHAPTER B. PROCEEDINGS TO COMPEL OR STAY ARBITRATIONS
§ 171.025. Stay of Related Proceeding (a) The court shall stay a proceeding that involves an issue subject to arbitration if an order for arbitration or an application for that order is made under this subchapter. (b) The stay applies only to the issue subject to arbitration if that issue is severable from the remainder of the proceeding.
History
Enacted by Acts 1997, 75th Leg., ch. 165 (S.B. 898), § 5.01, effective September 1, 1997.
LexisNexis ® Texas Annotated Statutes Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.
TAB 3 214 573 6306 P.05 OCT-09-2014 16:36 SARLES & OU I ~ ELECTION AND ARBITRATION AGREEMENT • By signing this Election And Arbitration Agreement (hereinafter "Agreement"), I, the undersigned employee, voluntarily elect to participate in the Susser Holdings, L.L.C. Employee Injury Benefit Plan (hereinafter the "Plan") and agree with my employer (hereinafter lithe Company") to the following: ENROLL~ENT IN THE PLAN: I understand that the Company, as expressly permitted by Texas law, does not carry workers' compensation insurance for its Texas employees, that it is a "nonsubscriber" under the Texas Workers' Compensation Act (hereinafter the "Act"), that it is not required as a nonsubscriber to provide any benefits whatsoever for on-thewjob injuries, that it has instead voluntarily established the Plan under federal law to provide certain benefits for on~the-job injuries, and that the Plan is not workers' compensation insurance. I understand that if I am injured on the job, I am, by signing and agreeing to this Agreement, eligible under the Plan's terms for the medical, disability, death, burial and dismemberment benefits described in the Plan and summarized in the Summary Plan Description. I understand that if I reject this Agreement, I will not be eligible for Plan Benefits, I understand and agree that the Plan's benefits are not workers' compensation benefits, but are provided Without regard to my own fault or negligence, without the necessity of me initiating a lawsuit or arbitration, and without me proving that the Company (or one of its employees) was negligent in causing my injury (or death). I have received a copy of the Summary Plan Description of the Plan, I understand and agree that, if I am injured on the job at the Company, I wHi follow the rules and procedures described in the Summary Plan Description, MUTUAL PROMiSeS TO RESOLVE CLAIMS BY BINDING ARBITRATION: I recognize that ....disputes may arise between the Company and- me during o;~fter my employment with the Company. I agree with the Company to submit any and all such disputes 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 of a speedy, impartial, mutual!y~blnding procedure for resolving disputes. This agreement to resolve claims by arbitration mutually binds and benefits both me (and my spouse, minor children, heirs, parents and legal representatives) and the Company {and Its successors, subsidiaries and affiliates, including Susser Holdings Corporation, Stripes Holdings LLC, Susser Holdings, LLC./ Susser Finance Corporation, APT Management Company, L.L.C., Applied Petroleum Technologies, Ltd., Stripes No. 1009 LLC. Stripes LLC, Susser FinanCial Services 1 of 4 EXHIBIT "An EXHIBIT 1 '~J Z007 sanes Ii. Ou,"'e(, ~.~.f', 'Exhibit I SRRLE'3 K [Ill I tylET 214 573 6306 P.06 [I(T-0'3-2014 16: 36 LLC, Stripes Acquisition LLC, reFS Holdings, Inc., Town & Country Food Stores, Inc., Corpus Christi Reimco, LLC, Susser Petroleum Company LLC, T&C Wholesale, Inc., GoPetro Transport LLC, SSP Beveo II LLC, SSP Bev Co I l.LC, SSP Beverage LLC, TND Beverage LLC, C&G Investments, LLC and Susser Company, ltd., and all of their officers, directors, shareholders, members, partners, owners, employees and agents and the Plan and its administrators and fiduciaries). EXAI)nPLES QF CLAIMS SUBJECT TO ARBITRATION: Examples of claims and disputes covered by this Agreement include. but are not limited to: (a) all claims and disputes that 1 (and my spouse, minor children, heirs, parents and legal representatives, if any) may ~ have or may in the future have against the Company or against its successors, subsidiaries and affiliates or any of their officers, directors, shareholders, members, partners, owners, employees and agents, or against the Plan or its administrators and fiduciaries, and (b) all claims and disputes that the Company or lts successors. subsidiaries and affiliates or any of their officers, directors, shareholders, members, partners, owners or the Plan may ~ have or may in the future have against me (and my spouse, minor children, heirs, parents and legal representatives, if any). Examples of the t~ges of claims covered by this Agreement include, but are not limited to, any and all: • claims for wages or other compensation; • claims for breach of any contract, covenant or warranty (express or implied); • tort claims, [ncluding 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); • claims for wrongful termination (including retaliatory discharge claims); • claims of harassment or discrimination (including claims based on race, sex, religion, national origin, age, medical condition or disability); • claims for benefits under the Plan (after exhausting administrative remedies under the terms of the Plan); .. claims for a Violation of any other federal, state or other governmental law, statute, regulation or ordinance; and • claims challenging the existence, validity or enforceability of this Agreement (in whole or in part) or challenging the applicability of this Agreement to a particular dispute or claim. CLAIMS NOT SUBJECT. TO ARBITRATION: The following matters only are not covered by this Agreement: (2) any criminal complaint or proceedings, and (b) claims before administrative agencies for unemployment benefits. COMPLETE AGREEMENT! The Arbitration Procedures in Section IX of the Summary Plan Description (and also in Section I, Paragraph B of the Plan) are incorporated by reference into, and made part of, this Agreement the same as if they were air written 2of4 !)J ~M7 SllfIea & Ouimo'. I..L.P. EXHIBIT"N' EXHIBIT 1 OCT-(;)9-2014 16: 36 214 573 6306 P.07 here. This Agreement, together with the incorporated Arbitration Procedures in Section IX of the Summary Plan Description, is the complete agreement between the Company and me, It takes the place of any other oral understanding about arbitration, but other written agreements, policies or procedures may also require me to arbitrate any disputes that I may have with the Company. I am not relying on any statements, oral or written, on the subject, effect. enforceability or meaning of this Agreement, except as specifically stated in this Agreement. If any provision of this Agreement is determined to be void or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement. NOT AN EMPLOYMENT AGREEMENT: Neither this Agreement, the Plan nor the Summary Plan Description shall §.Y!a!: be construed to create any contract of employment, express or implied. Nor does this Agreement, the Plan or the Summary Plan Description in any way alter the at-will status of my employment with the Company. RATIF1CATION BY RECEIPT OF P,LAN BENEFITS: I agree that each and every time that I receive Plan benefits, or have Plan benefits paid to a medical provider on my behalf, I ratify and reaffirm this Agreement the Same as if I had signed this Agreement again on the date the benefits were paid. REQUIREMENTS FOR MODIFICATION OR REYOCATION: This Agreement will survive the termination of my employment with the Company, This Agreement can only be revoked (except as provided in the paragraph below) or modified by a writing signed by both me and the Company's authorized representative that specifically states an intent to revoke or modify this Agreement, and this requirement of a signed writing cannot itself be waived except by such a signed writing, REVOCATION Q,F ACCEPTANC.E: If, after accepting this Agreement by signing below, I decide to revoke my acceptance of this Agreement, I may do so only by notifying the Company in writing by certified mail, return receipt requested. of my revocation. I understand and agree that I may not revoke my acceptance of this Agreement if the Plan has paid (or become obligated to pay) benefits to or for me. I understand and agree that I may onl~ revoke my acceptance of this Agreement: (a) within five (5) calendar days after the date of m~ signature below, or (b) within five (5) calendar days after receiving written notice of a material reduction in benefits provided by the Plan. VOLUNT~RY AGREEMENT: I acknowledge and agree that I have carefully read this Agreement! that I understand its terms, and that I have entered into this Agreement voluntarily and without duress, pressure or coercion from any person and without relying on any promises or representations by the Company other than those contained in this Agreement itself. I am not under the influence of alcohol or any other impairing substance, DQr am I under any mental incapacity that would affect me at the time of signing this Agreement I am aware of the consequences of signing this Agreement and, to the extent that I deem necessarY, I have consulted or will consult with an attorney. Finally, 1 agree and acknowledge that signing this Agreement is n2! a condition of my employment st the Company. 30f4 EXHIBIT "A" EXHIBIT 1 ClCT-0'3-2014 16: 36 214 573 6306 P.08 CHECK ONLY ONE OF THE FOLLOWING BOXES: .'fIIA J;31~ree to the terms of this Agreement. QB 0 I reject the terlTl$ of this Agreement. ,2 - I ~ -~ 12 Signature Of Employe& Dale Witness Signature P(inted'N~mEl of Witness Accepted ~nd Agreed: TltIt CD~:pa Vl-tj 40f4 EXHtBIT "A" EXHIBIT 1 OCT-09-2014 16:36 SRRLE~3 g OU I t'lET 214 573 6306 P.09 SUSSER HOLDINGS, L.L.C. EMPLOYEE INJURY BENEFIT PLAN SUMMARY PLAN DESCRIPTION I. GENERAL INFORMATION Your employer (hereinafter simply "the Company") has rejected coverage for its Texas employees under the Texas Workers' Compensation Act, become a i'nonsubscriber" to that Act, and does not provide workers' compensation insurance benefits to Texas employees, Rather, the Company has voluntarily established an occupational injury benefit plan (the "Plan") under federal law, The Plan is an employee group health and disability welfare benefit plan under the federal Employee Retirement Income Security Act of 1974 ("ERISA"). Susser Holdings, L.L.C. is the Plan Administrator. Generally, under the Plan, necessary medical treatment expenses are provided to participating employees for accidental, work-related, on-the-job injuries, and under certain conditions disability, dismemberment, burial and death benefits will be paid, The Plan pays these benefits without regard to the participating employee's fault or negligence and without the necessity of the participating employee proving that the Company or its employee was negligent. The Company pays the entire cost to provide benefits under, and to operate, the Plan. Employees partiCipating in the Plan make no payments or payroll deductions to be eligible for Plan benefits and pay no deductfbles or co-pay amounts, This Summary is intended to briefly describe the principal provisions of the Plan. Please read it carefully. A complete copy of the Plan document is on file for any eligible Employee desiring more detailed information, If a question should arise concerning the Plan, the Plan document (and not this Summary) shall govern and determine a Participant's rights. Capitalized terms used in this Summary are defined in the Plan. TIle Plan described in this Summary applies to on-the-job injuries sustained on or after the "Effective Date," January 1, 2008. The Company does not carry Texas Workers' Compensation Insurance, and the Plan does not constitute workers' compensation insurance coverage. See Exhibit I'S" attached hereto, II. ELIGIBILITY AND PARTICIPATION: ELECTION AND ARBITRATION AGREEMENT Every Texas Employee of the Company is eligible to participate in the Plan. In order actually to participate in the Plan, however, an Employee hired on or after the Effective Date must make a written election to become a Participant in the Plan by executing and agreeing to the terms of an "Election And Arbitration Agreement" substantially in the form attached to this Summary as Exhibit "A". The "Arbitration Procedures" of Section IX of this Summary are incorporated by reference into the Election And Arbitration Q ~(Jor S.rios & OUimet. L l P. EXHI)3IT 2 OCT-09-2t::H4 16: 37 214 573 6306 P.l0 regarding the Benefit sought. The notification will include the information described in items (1) through (4) of Section VII.A.1.b. above. 2, Appeal of Adverse Benefit Determination: A claimant seeking Dismemberment Benefits, Death Benefits and/or Burial Benefits will have a reasonable opportunity for a full and fair appeal of an adverse benefit determination by the Committee's designated representative. Such an appeal is to the Committee to review the adverse determination. The claimant will have at least 60 days after receipt of the notification of the adverse benefit determination by the Committee's designated representative to appeal to the Committee. Rules (2)-(4) of Section VII.A.2. also apply. 3. Decision on Appeal: The Committee's flnal decision on an appealed claim for Dismemberment Benefits, Death Benefits and/or Burial Benefits will be made within 60 days after the claimant submitted it in writing to the Committee (unless special circumstances require an extension of time for processing the appeal). The Committee will notify the claimant in writing of its decision on an appeal, again stating the reason or reasons for its decision and referencing the appHcable Plan provisions, If an extension of time for processing is required, written notice of the need for the extension will be provided to the claimant within 60 days of the appeal's receipt. The notice of extension will state the special circumstances requiring the extension and when a decision on the claim will be made. Even in special circumstances, a decision on an appeal will be made within 120 days. The Committee will provide a claimant with written notification of its determination on the claimant's appeal of the Claim. In the case of an adverse benefit determination, the notification will include the information described in items (1) through (4) of Section VII.A3. above, VIII. THE PLAN'S COMMITTEE The Committee appointed by the Plan Administrator (the Company) has discretionary and final authority to interpret and implement the provisions of the Plan. Every interpretation, choice, determination, or other exercise of authority by the Committee will be binding upon all affected parties, without restriction, however, on the right of the Committee to reconsider such action. IX. ARBITRATION PROCEDURES The following provisions of Section I, Paragraph B of the Plan 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, and apply to the Participant (referred to throughout as "I") and to the Company: 1. Required Notice for All Claims: I and the Company agree that the party seeking arbitration must make a written demand for arbitration on the other party within the applicable statute of limitations. Written demand on the Company or one or more of its officers, directors, shareholders. members, employees, agents, affiliates or benefit plans shall be sent to Susser Holdings, L.L.C" Attention: Executive Vice EXH~J3IT 2 <0 2007 Satl~. & OllimBt. L.L.P. OCT-09-2014 15:37 SRRLES g, OU I r'lET 214 573 5305 P.il President, P.O. Box 9036, Corpus Christi, Texas 78469 (or such other person or address as the Company may specify). If the Company wishes to invoke arbitration, it will make written demand for arbitration on me at the last address recorded in my personnel file. This demand for arbitration shall be sent to the other party (or parties) by certified or registered mail, return receipt requested. Neither filing nor serving a lawsuit stops the applicable statute of limitations from continuing to run. 2. Representation: Any party may be represented during pre-hearing procedures (as defined below), at the arbitration hearing and/or during the arbitration appeal (as defined below) by an attorney or other representative selected by the party. 3. Mediation: The Company and I agree that any arbitration that has been timely and properly demanded under Paragraph 1 above shall be stayed and shall not proceed until the parties to the arbitration have mediated the dispute with a mediator either agreed upon by all parties or, if agreement by all parties cannot be reached, by a mediator provided by Dispute Solutions, Inc. This mediation requirement may be waived by written agreement signed by all parties or their counsel. The cost of any mediation shall be split evenly between the two sides to the dispute; however, the employee's part of such mediation cost shall not exceed $50.00. a. The Company and I agree that the arbitration hearing will be conducted before one arbitrator (hereinafter the "hearing arbitrator") appointed by Dispute Solutions, Inc., or if Dispute Solutions, Inc. is unable to appoint an arbitrator, by the American Arbitration Association. The Company and I agree tha.t the then-current rules of Dispute Solutions, Inc. governing employment disputes (or, if Dispute Solutions, Inc. is unable to appoint an arbitrator, then the then-current Employment Arbitration Rules and Mediation Procedures of the American Arbitration Association) shall control and be applied by the hearing arbitrator and by the appellate arbitrators (as defined below). b. The hearing arbitrator shall apply the substantive law (and the laws of remedies, if applicable), in the state in which the claim arose, or federal law, or both, depending upon the claims asserted. The hearing arbitrator shall also strictly apply the Federal Rules of Evidence, except that deposition testimony of a witness may be used at the arbitration hearing without regard to whether the witness is unavailable. The hearing arbitrator shall provide brief findings of fact and conclusions of law. All arbitration decisions and awards rendered pursuant to the Election And Arbitration Agreement shall be kept strictly confidential and shall not be disclosed to anyone not a witness, attorney, party representative, or party who actually attended the arbitration hearing, c. The hearing arbitrator shall have the authority to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the agreement to arbitrate. The hearing arbitrator shall have the authority to hear and rule on prehearing disputes and is EXHU31T 2 OCT-09-2014 16:37 SRRLES & OIJ H'lET 214 573 6306 P.12 authorized to hold pre hearing conferences by telephone or in person as the arbitrator deems necessary. The hearing arbitrator shall have the authority to hear a motion to dismiss and/or a motion for summary judgment by any party and in doing so shall apply the standards governing such motions under the Federal Rules of Civil Procedure The hearing arbitrator shall stay any arbitration until the parties medjate the dispute, unless mediation has been waived by written agreement signed by all parties or their counsel. 5. Pre·Hearing Procedures: Each party will have the right to take the deposition of one individual and any expert witness designated by another party. Each party will have the right to subpoena witnesses in accordance with the Federal Arbitration Act, Title 9 of the United States Code. Additional discovery may be had only where the hearing arbitrator so orders, upon a showing of substantial need. At least 30 days before the arbitration, the parties must exchange lists of witnesses, including any experts, and copies of all exhibits intended to be used at the arbitration hearing. 6. Arbitration Pees and Costs: There will be both administrative fees and arbitrator compensation incurred for any arbltration hearing. The filing fee, included in the administrative fees, for the arbitration hearing will be paid $250.00 by me and the remainder by the Company. Unless I choose to pay all or a part of them, all other administrative fees and all of the hearing arbitrator's compensation will be paid by the Company. Arbitrator compensation and administrative fees are not subject to re- allocation in the award, but any fees for postponements will be paid by the party causing the postponement. Either party, at its expense, may arrange for and pay the cost of a court reporter to provide a stenographic record of the proceedings at the hearing. 7. Attorneys' Fees: The Company and I further agree as follows: a. Each party shall be responsible for their own attorney's fees, if any; however, if any party prevails on a statutory claim which allows the winning party to be awarded attorney's fees, or if there is a written agreement providing for fees, the hearing arbitrator shall award reasonable fees to the prevailing party. The hearing arbitrator shall determine the prevailing party in accordance with the meaning of "prevailing party" under the Civil Rights Attorney's Fees Awards Act of 1976. b. The hearing arbitrator shall assess attorney'S fees against a party upon a showing that such party's claim, defense or position is frivolous, or unreasonable, or factually groundless. c. If either party pursues a claim covered by this Agreement by any means other than those set forth in this Agreement, the responding party shall be entitled to dismissal of such action, and the recovery of all costs and attorney's fees and losses related to such action. e 2007 Sbrle. 8. Ouimot, k.U'. EXHU31T 2 OCT-09-2014 15:37 SAFLES & OU H'lET 214 573 5305 P.13 8. Appeal Procedures: The Company and I further agree as follows: a. Any party may appeal any arbitration award that has been rendered and become final under the rules governing the arbitration. The written appeal must be served in writing on the other party or parties to the arbitration and on Dispute Solutions, Inc. (or, if the American Arbitration Association appointed the hearing arbitrator, then on the American Arbitration Association) by certified mail within thirty (30) days after the hearing arbitrator caused the arbitration award to be mailed to the parties or to their representatives, The writing evidencing the appeal must specify those elements of the arbitration award that are being appealed and must contain a short statement of the appeal's basis. Once an appeal is timely served, the arbitration award by the hearing arbitrator shall no longer be considered final for purposes of seeking judicial enforcement, modification or vacation under the Federal Arbitration Act. b. Within fifteen (15) days after receipt of the appeal, the other party or parties may serve a written cross-appeal by serving it by certified mail on the other party or parties to the arbitration and on Dispute Solutions, Inc. (or, if the American Arbitration Association appointed the hearing arbitrator, then on the American Arbitration Association). The writing evidencing the cross-appeal must specify those elements of the arbitration award that are being appealed and must contain a short statement of the cross-appeal's basis. Once a cross-appeal is timely served, the arbitration award by the hearing arbitrator shall no longer be considered final for purposes of seeking judicial enforcement, modification or vacation under the Federal Arbitration Act, even if the appeal is subsequently withdrawn. c. Within forty-five (45) days after receipt of the appeal. the parties to the appeal shall select a panel of three arbitrators (hereinafter the "appellate arbitrators") utilizing the procedures to select arbitrators set forth in the then- current rules of Dispute Solutions, Inc. The hearing arbitrator shall not be eligible to serve as an appellate arbitrator. d. The fees and expenses of the appellate arbitrators shall be shared equally if both an appeal and a cross-appeal are served. If only an appeal is served, the fees and expenses of the appellate arbitrators shall be paid by the appellant party (or parties). Each party serving an appeal or cross-appeal shall deposit funds or post other appropriate security for the appellate arbitrators' fees, in an amount and manner determined by Dispute Solutions. Inc., (or, if the American Arbitration Association appointed the hearing arbitrator, then by the American Arbitration Association) within thirty (30) days after that party's service of an appeal or cross-appeal. e. The record on appeal to the appellate arbitrators shall consist of any stenographic record or other record of the hearing before the hearing arbitrator and shall include all exhibits and deposition transcripts admitted into the record by the hearing arbitrator. The parties to an appeal shall assist and cooperate with the Dispute Solutions, Inc. (or, if the American Arbitration Association appointed the hearing arbitrator, then the American Arbitration Associatfon) in providing the record, exhibits and deposition transcripts to the appellate arbitrators. f.The appellate arbitrators shall establish a briefing schedule, page limItations for briefs and a date and duration for oral argument; provided, however, that prior to the appellate arbitrators' rulings on these subjects, the parties to the appeal may agree to waive briefing and/or oral argument and may agree to their own page limitations for briefs. g. The appell!:~te arbitrators shall apply the same standard of review as the firstulevel appellate court would apply to the cause of action or defense on appeal in similar circumstances. If both federal and state~law causes of action (and/or defenses) are before the appellate arbitrators (either in a single appeal or as the result of a cross-appeal), the appellate arbitrators shall apply only the standards of review utilized by the United States Court of Appeals for the Fifth Circuit in similar circumstances. h. By majority vote, the appellate arbitrators may affirm, reverse, render or modify an arbitration award. The appellate arbitrators may remand, but they may not remand to the original hearing arbitrator. In the event of a remand, the parties shall select a new hearing arbitrator under the procedures set forth in the rules governing the arbitration, and the fees and expenses of the new hearing arbitrator shall be shared equally by the parties to the re-hearing. The appellate arbitrators' decision shall include a brief, written opinion addressing the issues before them, and such opinion shall be delivered to the parties and to Dispute Solutions, Inc. (or, if the American Arbitration Association appointed the hearing arbitrator, then to the American Arbitration Association) within thirty (30) days after the conclusion of any briefing schedule or any oral argument or as the parties may agree. Fifteen (15) days after receipt of the appellate arbitrators' opinion setting forth their decision, any award by them shall be considered final for purposes of judicial enforcement, modification or vacation under the Federal Arbitration Act. 9. Interstate Commerce and the Federal Arbitration Act: understand and agree that the Company is involved in transactions involving interstate commerce (e,g" purchasing goods and services from outside Texas which are shipped to Texas; utilizing the interstate mail, telephone and highway systems; operating facilities serving people from various states; and recruiting and advertising outside Texas) and that my employment with the Company and participation in the Plan involve such commerce, The Federal Arbitration Act, Title 9 of the United States Code, will govern the interpretation, enforcement, and all judicial proceedings under and/or with respect to the Election And Arbitration Agreement and Section I, Paragraph B of the Plan (Section IX of this Summary). '0 Z007 Sart9&" OW01et. L.L.F, EXHll3lT 2 Flied 11/12120144:55:15 PM Patsy Perez 1 DIstrict Cleric Nueces Coooty, Texas IIAZEM MRAYYAN, § IN THE COUNTY COURT § Plaintiff, § § v. § § AT LAW NUMBER ONE ERIC SCOTT POWELL, § MERRELL LEASE SERVICE, INC. § and STRIPES LLC, ' § § Defendants. § NUECESCOUNTY,TEXAS ORDER GRANTING STRIPES LLC'S APPLICATION FOR ORDER FOR ARBITRATION Defendant Stripes LLC having filed with its Original Answer an Application for Order for Arbitration requesting a fonnal written order enforcing the automatic stay imposed by Section 171.025(a) of the Civil Practice and Remedies Code on any further proceedings against Stripes LLC in this lawsuit, the Court is of the opinion that the statutory stay should be fonnalized by this Order. It is, therefore, ORDERED that Plaintiff Hazem Mrayyan' s claims and causes of action and all further proceedings against Defendant Stripes LLC be, and they hereby are, stayed pending resolution of these two parties' claims, causes of action and defenses in binding arbitration before Dispute Solutions, Inc. ("DSr') in accordance with their Election And Arbitration Agreement and the DSI Arbitration Rules. SIGNEDthi~daY~2014. DEFENDANT'S • EXHIBIT ) ~c ORDER GRANTING STRIPES LLC'S APPLICATION FOR ORDER FOR ARBITRATION- l TAB 5 l AGREED AS TO FORM ONLY: HILLIARD MUJ\lOZ GONZALES LLP BY:'~~_·_wt&J __ Robert C. Hilliard State Bar No. 09677700 Rudy Gonzales, Jr. State Bar No. 08121700 Catherine D. Tobin State Bar No. 24013642 Email: dunagan@sal.leslaw.com Kimberly D. Wilson SARLES & OUIMET State Bar No. 24066035 370 Founders Square 719 S. Shoreline Boulevard, Ste. 500 900 Jackson Street Corpus Christi, TX 78401 Dallas, Texas 75202-4436 Telephone No.: (361) 882-1612 Telephone: (214) 573-6300 Facsimile No.: (361) 882-3015 Telecopier: (214) 573-6306 DAVID T. BURKETT ATTORNEYS FOR DEFENDANT State Bar No. 03410500 . STRIPESLLC THE BURKETT LAW FIRM 538 S. Tancahua Corpus Christi, Texas 78401 Tel: (361) 882-8822 Fax: (361) 883-0733 AITORNEYS FOR PLAINTIFF ORDER GRANTING STRIPES LLC'S APPLICATION FOR ORDER FOR ARBITRA TION-2 -- ... -- , .. - - - - - - - - _ TAB 5 ----------------------- DISPUTE SC)LLTTIC)NS, INC. ARBITRATION RULES l. NOTIFICATION OF USE OF DSI Any company intending to incorporate these rules or to refer to the alternative dispute resolution (ADR) services of Dispute Solutions, Inc. (DSI) in an ADR plan shall, at least 30 days prior to the planned effective date of the program: (a) notify DSI of its intention to do so and, (b) provide DSI with a copy of the alternative dispute resolution plan. DSI may decline its administrative services to any company that does not comply with this requirement. 2. ApPLICABLE RULES OF ARBITRATION These rules, as amended from time to time by DSI, shall apply in the form in effect at the time the Demand for arbitration or joint submission is received by DSI. 3. DSI AS ADMINISTRATOR OF THE ARBITRATION When parties agree to arbitrate under these rules, or when they provide for arbitration by DSI and an arbitration is initiated under these rules, they thereby authorize DSI to administer the arbitration. The authority and duties ofDSI are described in these rules and may be carried out as DSI's representatives may direct. 4. INITIATION OF ARBITRATION Arbitration shall be initiated in the following manner. (a) The parties may make a joint submission for arbitration. (b) In the absence ofajoint submission for arbitration: (i) The initiating party (hereinafter "Claimant[s]") shall: (1) File with DSI two (2) copies of a written notice (hereinafter "Demand") of its intention to arbitrate, within the time limit established by the applicable statute oflimitations. Neither filing nor serving a lawsuit complies with this requirement. Any dispute over the timeliness of the demand shall be referred to the arbitrator. The Claimant shall include with the Demand a copy of the applicable arbitration agreement. The Demand shall set forth the names, addresses, and telephone numbers of the parties; a brief statement of the nature of the dispute; the amount in controversy, if any; the remedy sought; and the requested hearing location. (2) Simultaneously serve a copy of the Demand on the other party (hereinafter "Respondent[s]"). (3) Include with its Demand the applicable filing fee, unless the parties agree to some other method of fee advancement. (ii) The Respondent(s) shall file an Answer with DSI within 15 days after service of the Demand. The Answer shall provide the Respondent's brief response to the Demand. The Respondent(s) shall file the Answer with DSI and serve a copy on the Claimant. If no Answer is filed within the stated time, Respondent will be deemed to deny the Demand. Failure to file an Answer shall not delay the arbitration. (iii) The Respondent(s): (1) May file with DSI two (2) copies ofa Counterclaim within 15 days after the service of the Demand. Any Counterclaim shall set forth the nature of the claim, the amount in controversy, if any, and the remedy sought. (2) Simultaneously serve a copy of any Counterclaim on the Claimant. (3) Shall include with its filing the applicable filing fee provided for by these rules. (iv). The Claimant may file with DSI two (2) copies of an Answer to the Counterclaim within 15 days after service of the counterclaim. The Answer shall provide Claimant's brief response to the Counterclaim. The Claimant shall file the Answer with DSI and serve a copy on the Respondent. If no Answer is filed within the stated time, Claimant will be deemed to deny the Counterclaim. Failure to file an Answer shall not delay the arbitration. DEFENDANT'S DSI'S RULES OF MEDIATION AND ARBITRATION TAB 6 (Revi se d J a nu ary 20 15 (a) The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement. (b) The arbitrator shall have the power to determine the existence or validity ofa contract that includes an arbitration clause. Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitrator that the contract is null and void shall not for that reason alone render invalid the arbitration clause. (c) A party must object to the jurisdiction of the arbitrator or to the arbitrability of a claim or counterclaim no later than the filing of its Answer to the Demand or Counterclaim that gives rise to the objection. The arbitrator may rule on such objections as a preliminary matter or as part of the final award. As soon as practicable, an arbitration management conference shall be held among the parties and/or their attorneys or other representatives and the arbitrator(s). Unless the parties agree otherwise, the Arbitration Management Conference will be conducted by telephone conference call. At the Arbitration Management Conference the matters to be considered shall include, without limitation: (a) the issues to be arbitrated; (b) the date, time, place, and estimated duration of the hearing; (c) the resolution of outstanding discovery issues and establishment of discovery parameters; (d) the law, standards, rules of evidence, and burdens of proof that are to apply to the proceeding; (e) the exchange of stipulations and declarations regarding facts, exhibits, witnesses, and other issues; (f) the names of witnesses (including expert witnesses), the scope of witness testimony, and witness exclusion; (g) the value of bifurcating the arbitration into a liability phase and damages phase; (h) the need for a stenographic record; (i) whether the parties will summarize their arguments orally or in writing; G) the form of the award; (k) any other issues relating to the subject or conduct of the arbitration; (1) the allocation of attorney's fees and costs; (m) the specification of undisclosed claims; (n) the extent to which documentary evidence may be submitted at the hearing; (0) the extent to which testimony may be admitted at the hearing telephonically, over the internet, by written or video-taped deposition, by affidavit, or by any other means. The arbitrator shall issue oral or written orders reflecting his or her decisions on the above matters and may conduct additional conferences when the need arises. The arbitrator shall have the authority to order such discovery, by way of disclosures, deposition, interrogatory, document production, request for admission, request for inspection, or otherwise, as the arbitrator deems necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration. If a discovery dispute arises, the parties should notify DSI so that it may be presented to the arbitrator for determination. See Arbitration Rule 12. If the parties have not agreed and cannot agree to a location for the arbitration, the arbitrator(s) shall decide. The arbitrator(s) shall set the date, time, and place for each hearing. The parties shall respond to requests for hearing dates in a timely manner, cooperate in scheduling the earliest practicable date, and adhere to the established hearing schedule. (a) If the arbitration agreement does not specify the number of arbitrators or the parties do not agree otherwise, the dispute shall be heard and determined by one arbitrator. DSI'S RULES OF MEDIATION AND ARBITRATION (Revised January 2015) Page 2 TAB 6 Li§.§.QQiqt~§ Marion M. Reilly *Robert C. Hilliard Neely Balko Jacobo G. Munoz Todd A. Hunter, Jr. Catherine D. Tobin Kimberly Wilson *Rudy Gonzales, Jr. Austin L. Webber John B. Martinez Emily N. Hilliard *T. Christopher Pinedo *Alyssa K. Chaplin Gonzalo Joseph Barrientos Jose Luis Mul"ioz Hilliard Munoz Gonzales . Qf..(;;OU(lse 719 s. SHORELINE, SUITE 500 Juan Reyna CORPUS CHRISTI, TEXAS 78401 BUS: (361) 882-1 612 FAX: (361) 882-3015 TOLL: 800-334-3298 www.hmglawfirm.com March 6, 2015 VIA CMRRR: 7014 28700000 1830 1356 & U.S. REGULAR MAIL Attn: Executive Vice President Susser Holdings, LLC P.O, Box 9036 Corpus Christi, TX 78469 RE: HAZEM MRAVYAN'S DEMAND FOR ARBITRATION To whom it may concern, Please be advised that I along with David Burkett represent Hazem Mrayyan in connection with an incident, which occurred on March 27,2013 while he was working in the course and scope of his employment for Stripes, LLC at store #2160 in Corpus Christi, Texas. The incident in question involved a pedestrian/vehicle accident in which a vehicle driven by Eric Scott Powell, while in the course and scope of his employment for Merrell Lease Service, Inc., struck and severely injured Hazem Mrayyan while he was performing his duties as an employee of Stripes, LLC and in the course and scope of his employment for Stripes, LLC. The incident in question took place on the premises of the #2160 Stripes store located at Morgan Street and Crosstown in Corpus Christi, Texas, As a result of the incident in question, Mr. Mrayyan sustained substantial personal and bodily injuries_ The incident in question resulted from the negligence of Stripes, LLC. As a result of the injuries in question, Hazem Mrayyan has suffered personal injuries and hereby seeks compensation for, but not limited to: a. Past and future physical pain and mental anguish; b. Past and future impairment; c. Past and future disfigurement; DEFENDANT'S d. Past and future loss of earning capacity; EXHIBIT e. Past and future lost wages; f. Past and future medical expenses; and, L-/ . Mr Hllilarcl IS 60,lId Certified In Person,,, IlllllI'l I flail .1W and C,v,l Tflall aw tlV ttle I ex as BOHld "f' egal Specl"lilCl llon • M, G" r17aJe~ IS 6oa ,d Certlfrerj In Personal lilJllry Tllal l;,w by the Texas Board o f lenal Spec <,"zatlon ' Mr Pillcdo IS IIl:l'llsild 10 practice lAW II' I exas Aflzon" .'!nd (."llfO'III" TAB 7 ' Ms Cha plin IS licensed to practIce In Mass"chusetts Page 2\ P age g. Exemplary damages. Mr. Mrayyan hereby demands arbitration. This arbitration demand letter serves as formal notice, in accordance with Section IX(1) of the Susser Holdings, LLC Employee Injury Benefit Plan, to Susser Holdings, LLC, and all of its officers, directors, shareholders, members, employees, affiliates, representatives, agents, owners, and/or benefit plans regarding the injuries he sustained on or about March 27,2013. This demand for arbitration also serves as notice to Susser Holdings Corporation, Stripes Holdings, LLC, Applied Petroleum Technologies, Ltd., Stripes No. 1009, LLC, Stripes, LLC, Susser Financial Services, LLC, Stripes Acquisition, LLC TCFS, Holdings, Inc., Town and Country Food Stores, Inc. Corpus Christi, Reimco, LLC, Susser Petroleum Company, LLC, T&C Wholesale, Inc., GoPetro Transport, LLC, SSP BevCo II, LLC, SSP Bev Co I, LLC, SSP Beverage, LLC, TND Beverage, LLC, C&G Investments, LLC, and Susser Company, Ltd, and all of its officers, directors, shareholders, members, employees, affiliates, parent companies, representatives, agents, owners, and/or benefit plans. If for any reason you believe this notice and demand for arbitration is insufficient to put you on notice of Plaintiff's claims, please advise me immediately. Very truly yours, HILLIARD Mur'loz GONZALES, L.L.P. ~~~~~ ftj;ihl. Rudy Gonzales RGlth CC: VIA CMRRR: 7Q14 28700000 1t{30 1363 & U.S. REGULAR MAIL Gary D. Sarles O. Paul Dunagan Sarles & Ouimet 900 Jackson Street, Suite 370 Dallas, TX 75202 TAB 7 Page 31 P age (214) 573-6300 Attorneys for Stripes, LLC & The Susser Holdings, LLC Employee Injury Benefit Plan VI~_CIV!RRR: 7014 2870 0000 1830 1370 & U.S. REGULAR MAIL Dispute Solutions P.O. BOX 460115 Garland, TX 75046 VIA E-MAIL to:burketta@aol.com David Burkett Burkett Law Firm 538 South Tancahua Street Corpus Christi, TX 78401 (361) 883-6551 VIA E-MAIL toc.Y.-mbj.l~~9JlI1111@#JIH.C!.~J!m Cynthia Aguirre TAB 7 Colleen From: Wufoo Company Susser Holdings, LLC d/b/a Stripes Your Name Hazem Mrayyan: Attorney ..., Rudy Gonzales Your 719 S. Shoreline, SlJ1te 500, Corpus Christi, TX 78401 Address Email rg group@hmglawfirm.com Phone (361) 882 - 1612 Number Supervisor's Guillen Name Description of the Employee's Claim against the Company: On or about Wednesday, March 27, 2013, Plaintiff, HAZEM MRAYYAN, was working at the #2160 Stripes store located at 20,02 Morgan St. in Corpus Christi, Texas in Nueces County. HAZEM MRAYYAN was cleat'ling a fuel tank access opening or "spill bucket" located near the air pump facility of the Stripes store parking lot. Plaintiff HAZEM MRAYYAN was working in the course and scope of his employment for Oefendant STRIPES, LLC at the time of the incident ERIC SCOTT POWELL, was operating a 2004 White Chevrolet C/K 3500 owned by and under the control of MERRELL LEASE SERVICE, INC. Defendant ERIC SCOTT POWELL Parked n.ear the 'air pump, visited with Plaintiff HAZEM MRAYYAN, and inflated his tire. After havi.ng actual knowledge of Plaintiff Hf\ZEMMRAYYAN'5 presence and ample opportunity to observe Plaintiff HAZEM MRAYYAN working in the vicinity, HAZEM MRAYYAN got into his truck and proceeded to run over Plaintiff HAZEM MRAYVAN causing him substantial bodIly injuries. After running over Plaintiff HAZEM MRAYYAN, he reversed his truck and ran over Plaintiff a second time. Plaintiff HAZEM MRAYYAN alleges that Defendant STRIPES, LLC and its' agents, employees arid servants. had a duty to exercise reasonable care in providing Plaintiff HAZEM MRAYYAN with a safe place to work. DEFENDANT'S 1 l EXHIBIT tL TAB 8 I Plaintiff HAZEM MRAYYAN's injuries and damages, asserted in the current litigation. were proximately caused by Defendant STRIPES, LLC'S negligence, which either by act or omission, alone or in conjunction with others not listed herein. were each and all a proximate cause of the accident made the basis of this lawsuit. Defendant STRIPES, LLC was negligent in the following ways: a. Failure to provide Plaintiff with a safe workplace; b. Failure to ensure that its employee performed his work in a safe manner; c. Failure to properly supervise Plaintiff; d. Failure to use methods, processes, and safeguards that were reasonably necessary to protect the life, health and safety of Plaintiff; e. Failure to provide cones, barricades, or signage to eliminate traffic in the work area for the safety of Plaintiff; f. Failure to provide a brightly colored vest for Plaintiff to wear; and g. Failure to provide necessary safety training to Plaintiff Plaintiff repeats and incorporates by reference all other paragra,phs of this Petition as if fully set forth herein. Defendant's acts and omissions constituted gross negligence, and directly and proximately caused Plaintiff's injuries. Moreover, Defendant demonstrated conscious indifference to the safety and welfare of plaintiff for actions and omissions that amount to gross negligence. Defendant is liable to Plaintiff for gross. negligence -to wit: a. Defendant consciously and/or deliberately engaged in recklessness, Willfulness, wantonness and/or malice through Defendant's actions, and/or inactions as stated herein and Defendant should be held liable in punitive and exemplary damages to Plaintiff. b. Defendant's actions or inactions directly and proximately caused injury to Plaintiff. which resulted in the damages detailed below. Gross negligence" according to Texas Civil Practice & Remedies Code § 41.00 J(ll)(A)-(B) means an act or omission: TAB 8 a) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and b) of which the actor has actual, subjective awareness of the risk involved. but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others. As a result of such gross negligence of Defendant. the Plaintiff is entitled to exemplary damages. The names Plaintiff - Hazem Mrayyan of the Eric Scott Powell persons Merrell Lease Service, Inc. involved: Stripes, LLC - Defendant Susser Holdings, LLC d/b/a Stripes - Defendant Relief sought by the Employee: DAMAGES As a direct and proximate result of the occurrence made the basis of this lawsuit, Mr. Mrayyan suffered severe personal injuries and incurred the following damages: a. Past and future physical pain and mental anguish; b. Past and future loss of earning capacity; c. Past and future lost wages; d. Past and future disfigurement; e. Past and future medical expenses; f. Past and future physical impairment; g. Past and future loss of consortium; TAB 8 h. Past and future loss of household services. EXEMPLARY DAMAGES The conduct of Stripes was more than momentary thoughtlessness, inadvertence, or error of judgment, and was of such a character as to make Stripes gl)ilty of gross negligence. Stripes' acts and or omissions involved an extreme degree of risk, considering the probability and magnitude of the potentia! harm to others of which Stripes had actual awareness, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others, and Mr. Mrayyan therefore sues for the maximum amount of exemplary damages . .. • TAB 84. General Procedures:
I 3 B1T ge 1 5. JURISDICTION
6. ARBITRATION MANAGEMENT CONFERENCE
7. DISCOVERY
8. FIXING OF LOCALE (DATE, TIME, AND PLACE OF HEARING)
9. NUMBER, QUALIFICATIONS, AND ApPOINTMENT OF ARBITRATORS
A. Negligence
B. Gross Negligence
Stripes LLC v. Hazzem Mrayyan (Stripes LLC v. Hazzem Mrayyan) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.