In re Polymerica, LLC

• Decision Date: 23 October 2009
• Docket Number: No. 08-1064.,08-1064.
• Citation: 296 S.W.3d 74
• Parties: In re POLYMERICA, LLC d/b/a Global Enterprises, Inc., Relator.
• Court: Texas Supreme Court

296 S.W.3d 74

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

No. 08-1064.

Supreme Court of Texas.

October 23, 2009.

Henry John Paoli, M. Mitchell Moss, Scott Hulse, P.C., El Paso, TX, for Relator.

John P. Mobbs, Attorney At Law, George Paul Andritsos, Attorney At Law, El Paso, TX, for Real Party in Interest.

PER CURIAM.

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

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

All disputes between you and dm Dickason/Global shall be resolved exclusively through arbitration under the Federal Arbitration Act. All employees are required to sign a Dispute Resolution Plan Agreement, as a condition of employment, during their new employee orientation on the first day of employment. dm Dickason/Global's Dispute Resolution Plan and Arbitration Agreement is intended to provide a method for solving problems that is fair, prompt and effective.

...

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

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

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

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

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

Next, Soltero contends that because only Dickason, not Global, was a party to the Dispute Resolution Plan, Global may not enforce the Plan's terms. Global counters that even though it did not sign the Plan, it can enforce Dickason's agreement with Soltero under the equitable theory of direct-benefits estoppel. We need not address direct-benefits estoppel, however, because both Global and Soltero were parties to the Plan. The Plan notes that it "will apply to any disputes between dm Dickason/Global Enterprises and any applicant for employment, employee or former employee." It also defines "covered dispute" as including any claim, demand, or controversy "between Employee and dm Dickason and/or Global Enterprises." Although the Plan is signed only by Soltero and Dickason, we have never held that the...