1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-21-00403-CV 

________________

WAL-MART STORES TEXAS, LLC, Appellant

V.

TONY PEAVLEY, Appellee

________________________________________________________________________

On Appeal from the 163rd District Court

OrangeCounty, Texas

Trial Cause No. B210209-C 

________________________________________________________________________

MEMORANDUM OPINION

Wal-Mart Stores Texas, LLC (“Walmart Texas”) appeals the trial court’s 

Order Denying its Motion to Compel Arbitration and Stay Litigation in a suit 

asserting a negligence claim brought by its employee, Tony Peavley.1, 2 In four 

issues, Walmart Texas asks whether: 1) the Federal Arbitration Act applies to the 

1Appellee’s name is Tony Peavley, but the lawsuit incorrectly named him as 

“Tony Peazley.” We refer to him by his correct name in this opinion. 

2We may consider this interlocutory appeal. SeeTex. Civ. Prac. & Rem. Code 

Ann. §§ 51.016, 171.098(a)(1) (permitting interlocutory appeal from an order 

denying motion to compel arbitration).
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arbitration agreement; 2) Walmart met its burden to show the parties’ arbitration 

agreement was a valid agreement to arbitrate between Peavley and Walmart, or that 

Peavley ratified and accepted the arbitration agreement by accepting benefits under 

Walmart Texas’sInjury Care Benefit Plan; 3) Walmart met its burden to show that 

Peavley’s claims fell under the scope of the arbitration agreement; and 4) Peavley 

asserted any viable affirmative defense to the arbitration agreement’s enforcement 

or met his evidentiary burden to establish a viable defense to enforcement. As set 

forth below, we will reverse the trial court’s Order Denying Walmart Texas’s 

Motion to Compel Arbitration and Stay Litigation and remand for further 

proceedings consistent with this opinion.

Background

Peavley has been a Walmart Texas employee (or “associate”) since 2017. He 

allegedly sustained injuriesin the course and scope of his employment while moving 

pallets of water and subsequently sued Walmart Texas for negligence. Walmart 

Texas answered and demanded arbitration by asserting there was a valid, enforceable 

arbitration agreement. Walmart Texas is a non-subscriber to workers’ compensation 

insurance and instead, adopted its Texas Injury Care Benefit Plan as of 2012 (“2012 

Plan”) in lieu of workers’ compensation insurance for associates who sustained 

injuries in the course and scope of their employment. 

On July 1, 2017, the 2012 Plan was amended and restated in WalmartTexas’s 

current Texas Injury Care Benefit Plan (the “Plan”). Walmart Inc. (formerly known 
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as Walmart Stores, Inc.) is the Plan Sponsor, and Walmart Texasis a participating

employer in the Plan. The Plan provides specific benefits for employees, including 

payments for medical expenses and wage replacement, in the event of injury, workrelated illness, death, or dismemberment. Appendix A of the Plan is titled 

“ARBITRATION OF CERTAIN INJURY-RELATED DISPUTES” (the 

“Arbitration Agreement”).

Under the Arbitration Agreement, binding arbitration is the sole and exclusive 

remedy for resolving any covered claim or dispute between Walmart Texas and an 

associate. In other words, neither the associate nor Walmart Texas shall be entitled 

to a bench or jury trial on any claim covered by the Arbitration Agreement. “Covered 

claims” include “any legal or equitable claim by or with respect to an Associate for 

any form of physical or psychological damage, harm, or death which relates to an 

accident, occupational disease, or cumulative trauma.” “Covered claims” also 

include “[t]he determination of whether a claim is covered by this [Arbitration 

Agreement].” The Arbitration Agreement states that “This Policy applies to each 

Associate and Employer without regard to whether they have completed and signed 

a Receipt, Safety Pledge, and Arbitration Acknowledgement form or similar written 

receipt.” It further provides that this policy for resolving claims by arbitration is 

equally binding on the employer and the associate. Finally, if either WalmartTexas

or the associate files a claim covered by the Arbitration Agreement “...by any means 

other than arbitration, the responding party shall be entitled to dismissal of such 
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action, and the recovery of all costs and attorney’s fees and expenses related to such 

action.”

Peavley concedes he completed a computer-based learning (“CBL”) program 

online. In that CBL, Peavley was required to complete various modules and click 

acknowledgmentsthat were required before moving on. Peavley did so, and one of 

the required CBL modules included an acknowledgment of the Arbitration 

Agreement, which required him to click an “I Understand” button to complete. After 

reviewing the information in the CBL module, it advised Peavley to click on a link 

containing the Plan and read it, which contained the Arbitration Agreement as 

Appendix A, among other things. Peavley did so, then to complete the CBL module,

he had to click the “I Understand” button. The section informs the associate that by 

clicking the “I Understand” button, the associate is completing the course and 

acknowledging: 1) that the associate “read and [understood] the Arbitration 

Acknowledgement and Policy;” (2) that the associate understands his or her rights 

and obligations under the Plan; and (3) that the associate’s training record will be 

updated to show that the associate has successfully completed the course. Peavley 

completed these CBL training modules on three occasions – in September 2017, 

February 2019, and May 19, 2020, the last of which was eight days before his alleged 

on the job injury. 

Walmart Texas filed its Motion to Compel Arbitration and Stay Litigation and

supported the Motion to Compel with the following evidence: CBL Module; thePlan 
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including the Arbitration Agreement and Acknowledgment; Peavley’s CBL Record; 

and Senior Manager of Regional Risk Management Tim Osmond’s Affidavit, which 

outlines the CBL procedures and that Walmart Texas maintains records showing

Peavley completed the training module by accessing the module with his 

confidential associate identifier and password based on the training records that 

Walmart Texas retains.

Osmond authenticated the documents attached to the Motion to Compel, 

including the Plan CBL module as Exhibit “A.” Osmond averred that within that 

CBL module, there is a “Mandatory Arbitration Process” section and a section titled

“Summary Plan Description” and associates “must click the link to the Plan and 

review it before continuing.” Walmart Texas attached a copy of its Summary Plan,

which contained the “Arbitration of Certain Injury-Related Disputes” as “Appendix 

A.” Osmond explained theAcknowledgements contained an express declaration that 

the associate was acknowledging by clicking the “I Understand” button he had read

and understood the “Arbitration Acknowledgment and Policy.” Osmond averred

Walmart Texas’s training records showed that Peavley completed the CBLmodules 

for the Plan and that the Plan, including the Summary Plan Description with 

Appendix A, was provided to Peavley through CBL training as a part of his 

employment. Osmond further averred that Peavley’s training records showPeavley 

followed the described process to complete the Plan CBL and show that he 
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acknowledged he read and understood Appendix A, Arbitration of Certain Injury 

Related Disputes.

More importantly and more specifically, Appendix A contains the following 

language: 

(b) Binding Effect: This Policy for resolving claims by arbitration is 

equally binding upon, and applies to any such claims that may be 

brought by, an Employer and each Associate and his/her spouse, 

children, parents, beneficiaries, Representatives, executors,

administrators, guardians, heirs or assigns (including, but not limited

to, any survival or wrongful-death claim). This binding arbitration will 

be the sole and exclusive remedy for resolving any such claim or 

dispute.

(1) This Policy applies to each Associate and the Employer 

without regard to whether they have completed and signed a 

Receipt, Safety Pledge and Arbitration Acknowledgement form 

or similar written receipt. Adequate consideration for this Policy 

is represented by, among other things, eligibility for (and not 

necessarily any receipt of) benefits under this Plan and the fact 

that it is mutually binding on both the Employer and Associates. 

Any actual payment of benefits under this Plan to or with 

respect to an Associate shall serve as further consideration 

for and represent the further agreement of such Associate to 

the provisions of this Policy. This Policy shall remain in effect 

with respect to the Employer and all Associates, without regard 

to any Associate refusal of benefits under this Plan, return of 

benefit payments under this Plan to an Employer, ineligibility for 

or cessation of benefits under this Plan in accordance with its 

terms, or any voluntary or involuntary termination of an 

Associate’s employment with an Employer.

Peavley responded to the Motion to Compel Arbitration and argued that no 

valid agreement to arbitrate exists because he did not agree to arbitrate. In support 

of his response, Peavley provided an affidavit averring that
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I have never agreed to or otherwise consented to any arbitration 

agreement to my knowledge. I never signed an arbitration agreement in 

person or electronically, or otherwise. It was never explained to me that 

by clicking the ‘I understand’ button at the end of my training module 

that I was creating contractual obligations for myself, or any other 

party. Upon completing the course, the only option I had was to select 

‘I understand’ as that was the only button I could choose.

Peavley objected to Osmond’s affidavit on the basis that Osmond lacked personal 

knowledge but failed to obtain rulings on these objections. Walmart Texas also filed 

Objections to Plaintiff’s Affidavit and Reply to Plaintiff’s Response to Defendant’s 

Motion to Compel Arbitration and Stay Litigation and attached a copy of Peavley’s 

recorded statement, where he acknowledged completing the CBLs. The trial court 

overruled Walmart Texas’s objections to Peavley’s affidavit and denied the Motion 

to Compel Arbitration and Stay Litigation. 

Standard of Review

“[A] party seeking to compel arbitration must establish the existence of a valid 

arbitration agreement and show that the disputed claims fall within the scope of that 

agreement.” Wagner v. Apache Corp., 627 S.W.3d 277, 282 (Tex. 2021) (citing In 

re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005)). We review a trial 

court’s order denying a motion to compel arbitration for an abuse of discretion.

Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). We defer to the trial 

court’s factual determinations if they are supported by evidence but review its legal 

determinations de novo. Id.; see also Aerotek, Inc. v. Boyd, 624 S.W.3d 199, 204

(Tex. 2021) (noting deference to factual determinations if they are supported by 
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evidence). Whether the disputed claims fall within the scope of a valid arbitration 

agreement is a question of law, which we review de novo. See Henry, 551 S.W.3d 

at 115; In re Labatt Food Serv., L.P., 279 S.W.3d 640, 642–43 (Tex. 2009).

Analysis

In his brief, Peavley concedes jurisdiction and does not dispute the scope of 

the agreement. Rather, citing his own affidavit testimony, he contests the existence 

of an agreement to arbitrate, arguing that the evidence at trial created a fact issue as 

to whether he agreed to arbitrate in the absence of a signature and “that he had no 

such notice and agreed to no such thing.” Accordingly, we turn to issues two and 

four: whether Walmart Texas met its burden to show there was a valid agreement to 

arbitrate between it and Peavley; and whether Peavley asserted any viable 

affirmative defense to the arbitration agreement’s enforcement or met his evidentiary 

burden to establish a viable defense to enforcement.

To compel arbitration, a party must prove that a valid arbitration agreement 

exists. Aerotek, 624 S.W.3d at 204; Henry, 551 S.W.3d at 115 (citation omitted). In 

order for the Arbitration Agreement to be valid, Peavley must have consented to it. 

See Aerotek, 624 S.W.3d at 204 (citation omitted). Peavley does not contest that he 

completed the CBL module, instead he argues that there is no valid Arbitration 

Agreement because he did not receive notice or agree to the provision. Peavley’s 

argument is like that of the employees attempting to avoid the arbitration provision 

in Aerotek, which the Texas Supreme Court rejected. See id.
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“An electronic record or electronic signature is attributable to a person if it 

was the act of the person. The act of the person may be shown in any manner, 

including a showing of the efficacy of any security procedure applied to determine 

the person to which the electronic record or electronic signature was attributable.” 

Tex. Bus. & Comm. Code Ann. § 322.009(a); see also Aerotek, 624 S.W.3d at 205–

06 (discussing same). The Aerotek Court explained that a

security procedure[] may include requiring personal identifying 

information—such as a social security number or an address—to 

register for an account; assigning a unique identifier to a user and then 

tying that identifier to the user’s actions;maintaining a single, secure 

system for tracking user activities that prevents unauthorized access to 

electronic records; business rules that require users to complete all steps 

in a program before moving on or completing it; and timestamps 

showing when users completed certain actions.

Id. at 205–06 (internal citations omitted). These examples of security procedures are

non-exclusive. Id. at 206. 

Walmart Texas provided evidence in the form of Osmond’s affidavit.

Osmond’s affidavit established and the evidence Walmart Texas attached to its 

motion established that Peavley completed the training modules at a Walmart 

location and accessed the modules by entering his confidential associate 

identification number and password. Osmond explained that once a module is 

completed, an electronic training record is retained showing the date of completion, 
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status of completion, and score if a test was required.3 Osmond further averred that 

within the Plan CBL module, the associates must click the link to the Plan and review 

it before they can continue. “Within the Summary Plan Description that the 

Associate must click on to review before continuing to the next page is Appendix A 

titled ‘Arbitration of Certain Injury Related Disputes,’ which thoroughly describes 

the arbitration program.” Finally, in the “Acknowledgment of Completion” section 

of the CBL, by clicking “I Understand” the participant acknowledged that he read 

and understood the Arbitration Acknowledgment and Policy. Peavley does not 

dispute that he completed the CBL module at issue or that he received benefits under 

the plan. Peavley’s simple denial that he did not “agree” and did not have “notice” 

constituted no evidence. See Aerotek at 209. Peavley could not have completed the 

CBL without acknowledging and consenting to the Arbitration Agreement. See id.

In other words, the evidence conclusively shows Peavley, by clicking the button,

acknowledged he understood the Arbitration Agreement and that is sufficient to 

show he agreed to the terms in what the document says. 

3On appeal, Peavley complains that Osmond’s affidavit lacks personal 

knowledge, which is a defect of form. Although he objected to Osmond’s affidavit 

in the trial court, Peavley failed to obtain rulings on those objections and has waived 

them. See Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 207 (Tex. App.—Dallas 

2005, no pet.) (stating lack of personal knowledge is a defect of form). Because 

Peavley failed to obtain a ruling on his objections as to lack of personal knowledge 

in the trial court, he cannot raise these objections on appeal. See id.
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An employer may enforce an arbitration agreement entered into during an atwill employment relationship if the employee received notice of the arbitration 

policy and accepted it. In re Dallas Peterbilt, Ltd., L.L.P., 196 S.W.3d 161, 163 

(Tex. 2006); In re Halliburton Co., 80 S.W.3d 566, 568 (Tex. 2002). In Dallas 

Peterbilt, the employee argued that despite signing an acknowledgment form of a 

summary, he did not have notice because he never received the actual Mutual 

Agreement to Arbitrate Claims. See 196 S.W.3d at 162. Likewise, in Halliburton, 

the employee received a one-page summary of the agreement to arbitrate. See 80 

S.W.3d at 568–69. In essence, both the employees in each case argued that only the 

underlying agreements themselves could provide notice. Rejecting these arguments, 

the Texas Supreme Court explained that in determining whether an employee 

received notice of a binding arbitration agreement, the “cases do not confine that 

‘notice analysis’ to the underlying agreement, but to all communications between 

the employer and employee.” In re DallasPeterbilt, Ltd., L.L.P., 196 S.W.3d at 162 

(citations omitted). Although a summary of such an arbitration policy could be 

sufficient to place one on notice, the evidence here goes a step further and establishes 

that Peavley received the actual policy as Appendix A to the Summary Plan 

Description. 

Peavley contests that he received notice of the arbitration policy; however, his 

argument lacks merit since he does not dispute completing the CBL and clicking the 

button that states “I Understand.” By clicking that button, the language in the module 
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reflects that Peavley expressly acknowledged he had read and understood the 

agreement that required him to arbitrate injury-related disputes. Appendix A states

the policy is binding on Walmart and Peavley, and the fact Peavley accepted benefits 

under the Plan serves “as further consideration for and represent[ed] the further 

agreement” that Peavley agreed to the terms in the Plan. We conclude Peavley had 

notice of the Arbitration Agreement both before his injury occurred and before he 

accepted benefits under the Plan. See id. at 163 (finding the employer’s summary 

constituted effective notice since it unequivocally provided the employee with 

knowledge of the arbitration agreement); In re Halliburton Co., 80 S.W.3d at 569 

(holding that a notice and summary given to the employee was unequivocal notice).

“An at-will employee who receives notice of an employer’s arbitration policy 

and continues working with knowledge of the policy accepts the terms as a matter 

of law.” In re Dallas Peterbilt, Ltd., L.L.P., 196 S.W.3d at 163 (citation omitted). 

Walmart Texas’s evidence established that Peavley received notice of the arbitration 

policy when he completed the CBL modules on three separate occasions and 

continued to work for Walmart Texas after receiving notice. Furthermore, Peavley 

accepted the terms of the Arbitration Agreement. Due to the above, we further 

conclude Peavley agreed to arbitrate his on-the-job injury claim against Walmart 

Texas as a matter of law.4 See id. 

4Also of note, our sister court in Dallas held the same Arbitration Agreement 

was valid and enforceable where another Walmart employee completed the online 
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We conclude that Walmart Texas met its burden of showing the existence of 

a valid agreement to arbitrate between it and Peavley. We sustain issue two.

Since Walmart Texas met its burden of establishing the existence of a valid 

arbitration agreement and Peavley does not dispute that the claims fall within the 

scope of that agreement, the burden shifted to Peavley to prove an affirmative 

defense to enforcing the agreement. See Henry, 551 S.W.3d at 115 (citations 

omitted). Peavley failed to plead any affirmative defense to enforcement, and we 

have already explained that his affidavit denying he agreed or consented to arbitrate 

claims with his employer did not create a fact issue on whether he was bound to 

resolve his dispute with Walmart Texas under the arbitration agreement in the Plan. 

See Aerotek, 624 S.W.3d at 210. Accordingly, Peavley failed to meet his burden of 

establishing a viable affirmative defense to the Arbitration Agreement’s 

enforcement. We sustain issue four.

Conclusion

Since Peavley does not contest jurisdiction or the scope of the Arbitration 

Agreement, we overrule issues one and three. As to Walmart Texas’s remaining 

CBL modules containing the same materials and acknowledged receiving the 

arbitration policy. See Wal-Mart Stores, Inc. v. Constantine, No. 05-17-00694-CV, 

2018 WL 2001959, at *1, 6–8 (Tex. App.—Dallas Apr. 30, 2018, no pet.) (mem. 

op.). The plaintiffs there argued that Walmart’s evidence showing the employee 

completed the Plan CBL module was insufficient to show that he agreed to arbitrate

his clam. See id. at *5. There, as here, the employee clicked an “I Understand” button 

beneath the “Arbitration Acknowledgement.” See id.
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issues, we conclude Walmart Texas met its burden of showing the parties had a valid 

arbitration agreement, established Peavley acknowledged completing the CBL 

module, and established that Peavley continued working for Walmart Texas after 

receiving notice of the arbitration policy. We further conclude that Peavley failed to 

create a fact issue by submitting an affidavit that did nothing more than deny his 

agreement or consent. See Aerotek, 624 S.W.3d at 210; In re Dallas Peterbilt, 196 

S.W.3d at 163. Consequently, Peavley’s affidavit failed to raise a fact issue showing 

he had an affirmative defense to enforcing the Arbitration Agreement. 

We reverse the Order Denying Walmart Texas’s Motion to Compel 

Arbitration and Stay Litigation and remand the case to the trial court for further 

proceedings consistent with this opinion. Tex. R. App. P. 43.2(d).

REVERSED AND REMANDED.

 

_____________________________

W. SCOTT GOLEMON

ChiefJustice 

Submitted on January 19, 2023

Opinion Delivered February 9, 2023

Before Golemon, C.J., Horton and Johnson, JJ.