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HEB Grocery Company L.P. v. Perez

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

July 25, 2019


          On appeal from the County Court at Law No. 1 of Hidalgo County, Texas.

          Before Justices Benavides, Hinojosa, and Perkes



         In this accelerated appeal, Appellant HEB Grocery Company LP (HEB) seeks to reverse the trial court's denial of its motion to compel arbitration. We reverse and remand.

         I. Background

         Appellee Yolanda Perez applied for employment with HEB online. In its online application, HEB set forth the following "Agreement to Arbitrate":

HEB and I hereby agree to submit any controversy or claim arising out of or relating to my hiring, employment, benefits, and/or separation of employment or any occupational or on-the-job injury/illness to, and resolved exclusively by, final and binding arbitration under the Federal Arbitration Act (FAA).

         This "Agreement to Arbitrate" is referred to in the record as Exhibit D-5. Exhibit D-5 does not have a "yes" or "no" button marked. In Perez's online work application, however, marked as Exhibit D-2 in the record, HEB later asks potential employees the following question:

I understand and agree to the "General Agreement", "Agreement to Arbitrate", "Electronic Signature" and "Additional Agreements" as stated in the H-E-B Employment Application.

         Perez answered "yes" to this question. HEB Human Resources Technology Advisor Chris Shaver further explained these documents, testifying by affidavit as to the following:

Exhibit D-5 is a screen capture of the Agreements presented to the prospective partner when completing the electronic H-E-B Employment Application . . . . YOLANDA PEREZ was required to view Exhibit D-5 before she could confirm her acceptance of this agreement to arbitrate by responding "Yes" on her employment application (See Exhibit D-2). The "Yes" on Exhibit D-2 could not be provided without first having an opportunity to review Exhibit D-5.

         On February 10, 2013, while working at the cash register, Perez allegedly slipped and fell on some water leaking from a Coca-Cola cooler.[1] Perez claims she suffered serious bodily injuries due to this accident. Following this workplace injury, on February 26, 2013, Perez signed and dated a document entitled "Authorization for Medical Information and Acknowledgment of Arbitration Election Process Form." By signing this form, Perez acknowledged that, "[i]f I have elected comprehensive coverage, or was hired after 2/21/05, I confirm my agreement to arbitrate disputes relating to my injury." Perez later accepted $11, 460 in benefits under the HEB Work Injury Benefit Plan. When she accepted these benefits, she again agreed to be bound by arbitration. The Work Injury Benefit Plan provides that "any actual payment of benefits under this Plan to or with respect to you will serve as further consideration for and represent further agreement to the provision of this arbitration requirement."

         On January 16, 2015, nearly two years after her work accident, Perez sued HEB for her alleged on-the-job injuries. In its Original Answer filed on February 13, 2015, HEB generally denied all allegations and asserted that "this cause must be submitted to final binding arbitration in accordance with Plaintiff's written agreement to arbitrate all disputes, claims, and/or controversies." HEB then filed a Motion to Compel Arbitration and Stay All Proceedings on March 23, 2015, but it was not set for hearing until December 14, 2015. HEB agreed to reschedule this hearing date upon Perez's request. In a Rule 11 Agreement, Perez agreed to withdraw all of her discovery requests and allow HEB to participate in Coca Cola's deposition of Perez if HEB agreed to pass its motion to compel arbitration hearing. The Rule 11 further stipulated that this agreement between the parties would "not be a waiver of the arbitration agreement."

         The case, however, was not resolved. HEB did not propound any discovery in the case or seek any affirmative relief from the trial court during the pendency of this case. The hearing on HEB's motion to compel was finally heard on January 22, 2018-nearly three years after Perez filed her lawsuit and a month before the scheduled trial.

         The trial court, finding the lack of a "yes" or "no" answer on Exhibit D-5 to be significant, held that there was no clear indication that Perez agreed to arbitration and denied HEB's motion to compel arbitration. HEB then filed this accelerated appeal. See Tex. R. App. P. 26.1(b).

         II. Standard of Review

         In general, appellate courts review the trial court's denial of a motion to compel arbitration for abuse of discretion. Schlumberger Tech. Corp. v. Baker Hughes Inc., 355 S.W.3d 791, 800 (Tex. App.-Houston [1st Dist.] 2011, no pet.); see also Okorafor v. Uncle Sam & Assocs., Inc., 295 S.W.3d 27, 38 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). However, "[w]hen an appeal from a denial of a motion to compel arbitration turns on a legal determination . . . . we apply a de novo standard." Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 55 n. 9 (Tex. 2008).

         III. Analysis

         A. Perez Agreed to Arbitrate in Her Employment Agreement

         By its first issue, HEB claims that Perez agreed to arbitrate when she completed her employment agreement. Perez disagrees, averring that the online employment application did not have "yes" marked on the agreement to arbitrate or bear her signature, and that the application did not meet the requirements of the Texas Statute of Frauds. See Tex. Bus. & Com. Code Ann. § 26.01(a)(1)-(2).

         1. Signature on Agreement to Arbitrate

         "A signature, electronic or otherwise, is generally deemed to be sufficient to show assent to an arbitration agreement." Alorica v. Tovar, 569 S.W.3d 736, 740 (Tex. App.- El Paso 2018, no pet.). "However, signatures are not always required in order to demonstrate contract formation." Id. (citing Wright v. Hernandez, 469 S.W.3d 744, 756- 57 (Tex. App.-El Paso 2015, no pet.) (holding that the presence or absence of signature is relevant to determining intent to be bound but is not necessarily dispositive)). Texas courts have held that if an employee receives proper notice of an arbitration agreement, the employee's decision to show up to work thereafter demonstrates the employee's consent to arbitrate employment disputes. In re Halliburton Co., 80 S.W.3d 566, 568- 69 (Tex. 2002) (orig. proceeding). "While this maneuver spares an employer from having to get an employee's physical signature on an arbitration agreement as a prerequisite to arbitral forum access, this practice is not without risk, as relying on implied consent by ...

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