Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Brookshire Brothers Ltd. has petitions for a writ of mandamus. Brookshire sought to compel arbitration of a claim by one of its employees, Clara Mayfield, arising from an injury she sustained while working at Brookshire’s grocery store in Carthage. At the time of the injury, Brookshire was a nonsubscriber to the Texas Workers’ Compensation law. Mayfield filed a suit alleging Brookshire’s negligence proximately caused her injuries. The trial court denied Brookshire’s motion to stay litigation and compel arbitration; this request for mandamus relief ensued. HOLDING:Denied. Brookshire cites two federal cases involving securities transactions in which the courts have interpreted contracts, voluntarily entered by the parties, which contain broad arbitration agreements to require the disputes, some of which arose before the arbitration provision, to be resolved by arbitration. Coenen v. R.W. Pressprich & Co., 453 F.2d 1209 (2d Cir. 1972); R.M. Perez & Assoc. Inc. v. Welch, 960 F.2d 534 (5th Cir. 1992). The acts or omissions giving rise to Mayfield’s cause of action occurred July 21, 2004, a time when no arbitration policy was in effect. Brookshire did not institute the arbitration policy until Aug. 29, 2005, and did not notify Mayfield of the policy until January 2006. The policy specifically designates its commencement “Beginning August 29, 2005 (the ‘Effective Date’).” The arbitration agreement does not specifically include prior claims. The arbitration provision speaks prospectively only: “The policy will cover all disputes arising out of your relationship with [Brookshire].” To interpret the arbitration clause to apply retroactively would cause Mayfield to forego her vested right to litigate an accrued claim. The designated representative of Brookshire, Robert Gilmer, originally testified it was not Brookshire’s policy that the arbitration provision applied to claims which occurred before Aug. 29, 2005 (the effective date of the arbitration provision). The court finds this arbitration policy does not manifest an intention to include this pre-existing dispute. The trial court did not abuse its discretion in denying the motion for arbitration. “Since it is the policy of our state to encourage alternative dispute resolutions, an employee should not be penalized for attempting to resolve a matter by a sanctioned alternative to litigation. After examining the entire atmosphere in which the policy was made; the alternatives, if any, available to the parties at the time the policy was instituted; the ‘non-bargaining ability’ of one party; whether the policy was illegal or against public policy; and whether it is oppressive or unreasonable, we find the arbitration policy, as applied to Mayfield’s situation, was procedurally unconscionable.” OPINION:Carter, J.; Morriss, C.J., Ross and Carter, J.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.