NO. 04-15-00307-CV

IN THE COURT OF APPEALS 

FOURTH COURT OF APPEALS DISTRICT 

SAN ANTONIO, TEXAS 

* * * 

AUTOZONE, INC., AND AUTOZONERS, L.L.C., 

 Appellants

V.

MARIO FLORES, 

 Appellee 

* * * 

BRIEF OF APPELLANTS 

* * * 

BRETT REYNOLDS & ASSOCIATES, P.C.

Brett T. Reynolds

State Bar No. 16795500

btreynolds@btrlaw.com

P. Brook Swilley

State Bar No. 24041997

pbswilley@btrlaw.com

1250 N.E. Loop 410, Suite 420

San Antonio, Texas 78209

(210) 805-9799

(210) 805-9654 (telecopier)

THE LAW OFFICE OF 

JACQUELINE M. STROH, P.C.

Jacqueline M. Stroh

State Bar No. 00791747

jackie@strohappellate.com

10101 Reunion Place, Suite 600

San Antonio, Texas 78216

(210) 477-7416

(210) 477-7466 (telecopier)

ATTORNEYS FOR APPELLANTS 

APPELLANTS RESPECTFULLY REQUEST ORAL ARGUMENT

ACCEPTED

04-15-00307-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

6/23/2015 4:35:06 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 06/23/2015 4:35:06 PM KEITH E. HOTTLE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL 

 In accordance with Texas Rule of Appellate Procedure 38.1(a), Appellants 

present the following list of all parties to the order being appealed and their 

counsel: 

1. Appellants/Defendants Below 

 AutoZone, Inc. 

 AutoZoners, L.L.C. 

2. Counsel for Appellants 

Brett T. Reynolds Trial/Appellate Counsel 

P. Brook Swilley 

1250 N.E. Loop 410, Suite 420 

San Antonio, Texas 78209 

 

Jacqueline M. Stroh Appellate Counsel 

The Law Office of Jacqueline M. Stroh, P.C. 

10101 Reunion Place, Suite 600 

San Antonio, Texas 78216 

3. Appellee/Plaintiff Below 

 Mario Flores 

4. Counsel for Appellee 

Jaime M. Lynn Trial/Appellate Counsel 

Kiara Martinez 

The Carlson Law Firm, P.C. 

11606 North Interstate Highway 35 

Austin, Texas 78753 

-and400 West Jasper Road 

Killeen, Texas 76542 
iii

TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iii 

INDEX OF AUTHORITIES ................................................................................... vii

STATEMENT OF THE CASE ................................................................................ xv 

STATEMENT REGARDING JURISDICTION ....................................................xvi 

STATEMENT REGARDING ORAL ARGUMENT .......................................... xvii 

ISSUE PRESENTED ........................................................................................... xviii 

Issue No. 1:

Whether the AutoZone Appellants are entitled to have the arbitration 

provisions contained in the parties’ agreement enforced pursuant to 

the Federal Arbitration Act, resulting in a referral of this matter to 

arbitration. 

The arbitration agreement expressly invokes application of the Federal 

Arbitration Act, as well as AutoZone’s involvement in interstate 

commerce. That agreement is broad in scope – applying to claims for 

personal injury – and reserves to the arbitrator all questions regarding 

the interpretation, enforcement, and scope of the agreement. 

Regardless, Appellee Flores’ claims fall well within the agreement’s 

scope; and Flores’ only defenses – based on section 1’s exemption, 

the Texas Labor Code, and procedural unconscionability – have been 

rejected by Texas and federal courts alike ................................................ xviii 

STATEMENT OF FACTS ........................................................................................ 1 

SUMMARY OF THE ARGUMENT ........................................................................ 3 

ARGUMENT AND AUTHORITIES ........................................................................ 6 
iv

I. This Court Reviews the Trial Court’s Ruling De Novo........................ 6 

II. The AutoZone Appellants Established the Existence of a Valid 

Arbitration Agreement Enforceable under the Federal 

Arbitration Act ...................................................................................... 8 

A. The Parties Entered into a Binding Arbitration 

Agreement to which the Federal Arbitration Act Applies .......... 9 

 1. The Plan Expressly Invokes the FAA ............................10

 2. The Plan Involves Interstate Commerce.........................11

B. The Arbitration Agreement Encompasses Mario Flores’ 

Claims; Regardless, the Issue Is One for the Arbitrator to 

Decide .......................................................................................14

 1. The Arbitration Agreement Reserves for the 

Arbitrator’s Decision the Issue of Whether Flores’ 

Claims Fall within Its Scope ...........................................14

 2. Even if the Scope of the Arbitration Agreement Is 

an Issue for Judicial Determination, Flores’ 

Personal Injury Claims Fall Well within the 

Agreement’s Terms ........................................................16

III. None of Appellee Flores’ Efforts to Thwart the Arbitration 

Agreement Have Merit ........................................................................17

A. Courts Recognize That the Federal Arbitration Act’s 

Exception for “Employment” Agreements Applies Solely 

to Transportation Workers, Unlike Appellee Flores .................18

 1. Flores Cannot Argue an Exception to the FAA 

When He Expressly Agreed to the FAA’s 

Application .....................................................................18

 2. Any Question Regarding Interpretation or 

Enforcement of the Agreement Must Be Decided 

by the Arbitrator .............................................................19
v

 3. Regardless, the Supreme Court Has Limited the 

Exception to Transportation Workers Actually 

Engaged in the Interstate Transport of Goods ................19

 B. The Texas Workers’ Compensation Act Does Not 

Preclude Enforcement of the Plan’s Arbitration 

Provisions, Nor Could It in Light of the Federal 

Arbitration Act’s Supremacy ....................................................21

 1. The Supreme Court of Texas Has Rejected This 

Exact Argument, and Flores Conceded as Much 

Below ..............................................................................22

 2. To the Extent Section 406.003(e) Would Preclude 

Arbitration, the FAA Would Preempt It .........................23

C. Appellee Flores Failed to Demonstrate Procedural 

Unconscionability .....................................................................24

 1. Appellee Flores Attacked the Parties’ Agreement 

as a Whole – an Argument That the Supreme 

Court of the United States Has Held Must Be 

Resolved by the Arbitrator .............................................24

 2. Even Assuming a Court Could Decide the Issue, 

This Court Has Held That Illiteracy Is No Defense 

to Arbitration ..................................................................28

 a. Flores’ “Proof” Constitutes Barred Parol 

Evidence and, Thus, Cannot Be Considered 

by the Court ..........................................................28

 b. Texas Law Does Not Recognize an Inability 

to Read English as a Defense to Contract – 

Even with an Unconscionability Label – and 

Flores Offered No Supportive Evidence in 

Any Event .............................................................29
vi

 i. Flores Offered No Proof of an 

Inability to Speak, Read, or Write 

English .......................................................29

 ii. Texas Does Not Recognize Illiteracy 

as a Defense to Contract Generally or 

as a Defense to Arbitration 

Specifically .................................................31

 iii. This Court Has Rejected Flores’ 

Authority, and Flores Offered No 

Evidence of Fraud on AutoZone’s 

Part Regardless ...........................................35

PRAYER ..................................................................................................................38

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME 

LIMITATION ............................................................................................39

CERTIFICATE OF SERVICE ................................................................................40

APPENDIX ............................................................................................. (A-1 to A-3)

 Order Denying “Defendants’ Motion to 

Compel/Enforce Arbitration” (04/27/15) ........................................... A-1 

 Federal Arbitration Act ................................................................................... A-2 

 

 Excerpts from the AutoZone Texas Occupational 

Injury Benefit Plan .............................................................................. A-3 
vii

INDEX OF AUTHORITIES

Page

CASES

Allied-Bruce Terminix Cos., Inc. v. Dobson, 

513 U.S. 265 (1995) ..............................................................................................11

Associated Employers Lloyds v. Howard, 

156 Tex. 277, 294 S.W.2d 706 (1956) .................................................................31

Brand FX, LLC v. Rhine, 

458 S.W.3d 195 (Tex. App. – Fort Worth 2015, no pet.) ....................................... 7 

Buckeye Check Cashing, Inc. v. Cardegna, 

546 U.S. 440 (2006) ..............................................................................................25

BWI Cos., Inc. v. Beck, 

910 S.W.2d 620 (Tex. App. – Austin 1995, orig. proceeding) ..................... 12, 20 

Cantella & Co. v. Goodwin, 

924 S.W.2d 943 (Tex. 1996) (orig. proceeding) ......................................... 8, 9, 16 

Cintas Corp. v. Quevedo, 

No. 04-11-00142-CV, 2012 WL 1940642 

(Tex. App. – San Antonio, May 30, 2012, no pet.) (mem. op.) ...........................29

Circuit City Stores, Inc. v. Adams, 

532 U.S. 105 (2001) ................................................................................... 9, 19, 20 

City of San Antonio v. International Ass’n of Fire Fighters, Local 624, 

Nos. 04-12-00783-CV and 04-13-00109-CV, 2013 WL 5508408 (Tex. 

App. – San Antonio, Oct. 2, 2013, no pet., orig. proceeding) (mem. op.) .......7, 13 

De Villagomez v. First Nat’l Bank, 

No. 13-04-00367-CV, 2005 WL 1832800 

(Tex. App. – Corpus Christi, Aug. 4, 2005, pet. denied) (mem. op.) ...................32

EEOC v. Waffle House, Inc., 

534 U.S. 279 (2002) ..............................................................................................19

Elkins v. Stotts-Brown, 

103 S.W.3d 664 (Tex. App. – Dallas 2003, no pet.) ............................................31
viii

Ernst & Young LLP v. Martin, 

278 S.W.3d 497 (Tex. App. – Houston [14th Dist.] 2009, 

no pet., orig. proceeding) ......................................................................................15

Estate of Benitez v. Sears, Roebuck & Co., 

No. 3:13-CV-0468-D, 2013 WL 4223875 (N.D. Tex., Aug. 14, 2013) .. 27, 37, 38 

EZ Pawn Corp. v. Mancias, 

934 S.W.2d 87 (Tex. 1996) (orig. proceeding) (per curiam) ...............................24

Fleetwood Enters., Inc. v. Gaskamp, 

280 F.3d 1069 (5th Cir. 2002) ..............................................................................28

Forest Oil Corp. v. McAllen, 

268 S.W.3d 51 (Tex. 2008)...................................................................................15

Glassman v. Goodfriend, 

347 S.W.3d 772 (Tex. App. – Houston [14th Dist. 2011, pet. denied) 

(en banc) ................................................................................................................37

Grapevine Excavation, Inc. v. Maryland Lloyds, 

35 S.W.3d 1 (Tex. 2000).......................................................................................37

Green v. SuperShuttle Int’l, Inc., 

653 F.3d 766 (8th Cir. 2011) ................................................................................19

Henry v. Gonzalez, 

18 S.W.3d 684 (Tex. App. – San Antonio 2000, 

pet. dism’d, orig. proceeding) ...............................................................................26

IHS Acquisition No. 171, Inc. v. Beatty-Ortiz, 

387 S.W.3d 799 (Tex. App. – El Paso 2012, no pet.) ..........................................15

In re AdvancePCS Health, L.P., 

172 S.W.3d 603 (Tex. 2005) (orig. proceeding) ........................................... 10, 21 

In re Alamo Lumber Co., 

23 S.W.3d 577 (Tex. App. – San Antonio 2000, orig. proceeding) .....................10

In re Big 8 Food Stores, Ltd., 

166 S.W.3d 869 (Tex. App. – El Paso 2005, orig. proceeding) .............. 12, 13, 32 
ix

In re Border Steel, Inc., 

229 S.W.3d 825 (Tex. App. – El Paso 2007, orig. proceeding) .............. 23, 24, 34 

In re Dallas Peterbilt, Ltd., L.L.P., 

196 S.W.3d 161 (Tex. 2006) (orig. proceeding) ..................................................21

In re Dillard Dep’t Stores, 

198 S.W.3d 778 (Tex. 2006) (orig. proceeding) ..................................................21

In re FirstMerit Bank, N.A., 

52 S.W.3d 749 (Tex. 2001) (orig. proceeding) ......................................... 7, 17, 26 

In re Gardner Zemke Co., 

978 S.W.2d 624 (Tex. App. – El Paso 1998, orig. proceeding) ...........................13

In re Golden Peanut Co., LLC, 

298 S.W.3d 629 (Tex. 2009) (orig. proceeding) (per curiam) ...................... 22, 24 

In re H.E. Butt Grocery Co., 

17 S.W.3d 360 (Tex. App. – Houston [14th Dist.] 2000, orig. proceeding) . 17, 29 

In re Halliburton Co., 

80 S.W.3d 566 (Tex. 2002) (orig. proceeding) ................................... 8, 21, 24, 29 

In re HEB Grocery Co., L.P., 

299 S.W.3d 393 (Tex. App. – Corpus Christi 2009, orig. proceeding)......... 10, 16 

In re Jim Walter Homes, Inc., 

207 S.W.3d 888 (Tex. App. – Houston 14th Dist.] 2006, orig. proceeding) .......11

In re Kellogg Brown & Root, 

80 S.W.3d 611 (Tex. App. – Houston [1st Dist.] 2002, orig. proceeding) ... 10, 11 

In re L & L Kempwood Assocs., L.P., 

9 S.W.3d 125 (Tex. 1999) (orig. proceeding) (per curiam) .............................8, 12 

In re Labatt Food Serv., L.P., 

279 S.W.3d 640 (Tex. 2009) (orig. proceeding) .................................................... 7 

In re Ledet, 

No. 04-04-00411-CV, 2004 WL 2945699 (Tex. App. – 

San Antonio, Dec. 22, 2004, orig. proceeding) (mem. op.) ........ 33, 34, 36, 37, 38 
x

In re Lyon Fin. Servs., 

257 S.W.3d 228 (Tex. 2008) (orig. proceeding) ..................................................24

In re Macy’s Tex., Inc., 

291 S.W.3d 418 (Tex. 2009) (orig. proceeding) (per curiam) .............................21

In re McKinney, 

167 S.W.3d 833 (Tex. 2005) (orig. proceeding) ..................................................21

In re Merrill Lynch Trust Co. FSB, 

123 S.W.3d 549 (Tex. App. – San Antonio 2003, orig. proceeding) ...................12

In re MP Ventures of So. Tex., Ltd., 

276 S.W.3d 524 (Tex. App. – San Antonio 2008, orig. proceeding) ...................23

In re Nexion Health at Humble, Inc., 

173 S.W.3d 67 (Tex. 2005) (orig. proceeding) ....................................................13

In re Oakwood Mobile Homes, Inc., 

987 S.W.2d 571 (Tex. 1999) (orig. proceeding), 

abrogated in part on other grounds in In re Halliburton Co., 

80 S.W.3d 566 (Tex. 2002) (orig. proceeding) ..................................................... 8 

In re Odyssey Healthcare, Inc., 

310 S.W.3d 419 (Tex. 2010) (orig. proceeding) ..................................................22

In re Olshan Foundation Repair Co., LLC, 

328 S.W.3d 883 (Tex. 2010) (orig. proceeding) ........................................... 24, 26 

In re People’s Choice Home Loan, Inc., 

225 S.W.3d 35 (Tex. App. – El Paso 2005, orig. proceeding) .............................10

In re Poly-Am., L.P., 

262 S.W.3d 337 (Tex. 2008) (orig. proceeding) .................................................... 7 

In re Rangel, 

45 S.W.3d 783 (Tex. App. – Waco 2001, orig. proceeding) ................................34

In re ReadyOne Indus., 

294 S.W.3d 764 (Tex. App. – El Paso 2009, orig. proceeding) ...........................10

In re Rubiola, 

334 S.W.3d 220 (Tex. 2011) (orig. proceeding) ..............................................8, 16 
xi

In re Swift Transp. Co., 

311 S.W.3d 484 (Tex. App. – El Paso 2009, orig. proceeding) .................... 20, 21

In re Turner Bros. Trucking Co., 

8 S.W.3d 370 (Tex. App. – Texarkana 1999, orig. proceeding) ............. 23, 35, 36 

Indemnity Ins. Co. of N. Am. v. W.L. Macatee & Sons, 

129 Tex. 166, 101 S.W.2d 553 (1937) .................................................................31

J.M. Davidson v. Webster, 

128 S.W.3d 223 (Tex. 2003) ................................................................................17

Jack B. Anglin Co., Inc. v. Tipps, 

842 S.W.2d 266 (Tex. 1992) (orig. proceeding) ..............................................9, 23 

Kuper v. Schmidt, 

161 Tex. 189, 338 S.W.2d 948 (1960) .................................................................29

Lopez v. Garbage Man, Inc., 

No. 12-08-00384-CV, 2011 WL 1259523 

(Tex. App. – Tyler, Mar. 31, 2011, no pet.) (mem. op.).......................................32

Lost Creek Mun. Utility Dist. v. Travis Indus. Painters, Inc., 

827 S.W.2d 103 (Tex. App. – Austin 1992, writ denied) .....................................12

Madeksho v. Abraham, Watkins, Nichols & Friend, 

57 S.W.3d 448 (Tex. App. – Houston [14th Dist.] 2001, pet. denied) .................31

Manahan v. Meyer, 

862 S.W.2d 130 (Tex. App. – Houston [1st Dist.] 1993, writ denied) .................14

Medina v. Tate, 

438 S.W.3d 583 (Tex. App. – Houston [1st Dist.] 2013, no pet.) ........................37

MobileVision Imaging Servs., L.L.C. v. LifeCare Hosps. of N. Tex., L.P., 

260 S.W.3d 561 (Tex. App. – Dallas 2008, no pet.) ............................................37

Nguyen Ngoc Giao v. Smith & Lamm, P.C., 

714 S.W.2d 144 (Tex. App. – Houston [1st Dist.] 1986, no writ) .......................33

Penrol Drilling Corp. v. Williams, 

868 S.W.2d 294 (Tex. 1993) ................................................................................36
xii

Perry Homes v. Cull, 

258 S.W.3d 580 (Tex. 2008) ................................................................................26

Petroleum Analyzer Co. LP v. Franek Olstowki, 

No. 01-09-00076-CV, 2010 WL 2789016 

(Tex. App. – Houston [1st Dist.], Jul. 15, 2010, no pet.) (mem. op.) ..................13

Prevot v. Phillips Petroleum Co., 

133 F.Supp.2d 937 (S.D. Tex. 2001) ....................................................................35

Prima Paint Corp. v. Flood & Conklin Mfg. Co., 

388 U.S. 395 (1966) ....................................................................................... 25, 26 

Prudential Securities, Inc. v. Marshall, 

909 S.W.2d 896 (Tex. 1995) (orig. proceeding) ..................................................16

ReadyOne Indus., Inc. v. Flores, 

___ S.W.3d ___, 2014 WL 6982275 

(Tex. App. – El Paso, Dec. 10, 2014, pet. filed) ...................................................34

Rent-A-Center, West, Inc. v. Jackson, 

561 U.S. 63 (2010) ................................................................................... 15, 25, 26 

Seven Hills Commercial, LLC v. Mirabal Custom Homes, Inc., 

442 S.W.3d 706 (Tex. App. – Dallas 2014, pet. denied) ......................................15

Shearson/American Express, Inc. v. McMahon, 

482 U.S. 220 (1987) ................................................................................................ 9 

Southland Corp. v. Keating, 

465 U.S. 1 (1984) ..................................................................................................23

State v. Shumake, 

199 S.W.3d 279 (Tex. 2006) .................................................................................. 7 

Tamez v. Southwestern Motor Transport, Inc., 

155 S.W.3d 564 (Tex. App. – San Antonio 2004, no pet.) ........................... 32, 38 

TMI, Inc. v. Brooks, 

225 S.W.3d 783 (Tex. App. – Houston [14th Dist.] 2007, 

pet. denied, orig. proceeding) ...............................................................................30
xiii

United States v. Lauersen, 

No. 98 CR. 1134(WHP), 1999 WL 637237 

(S.D.N.Y., Aug. 20, 1999) (not designated for publication) ................................14

Valdez v. Autozone, Inc., 

No. H-14-3386, 2015 WL 1099700 

(S.D. Tex., Feb. 17, 2015) (not designated for publication) .................................15

Vera v. North Star Dodge Sales, Inc., 

989 S.W.2d 13 (Tex. App. – San Antonio 1998, no pet.) ........... 31, 33, 36, 37, 38 

Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior 

Univ., 

489 U.S. 468 (1989) ..............................................................................................10

White-Weld & Co., Inc. v. Mosser, 

587 S.W.2d 485 (Tex.Civ.App. – Dallas 1979, writ ref’d n.r.e.) .........................20

CONSTITUTIONAL PROVISIONS

U.S. CONST. art. VI, cl.2 ..........................................................................................23

STATUTES

FEDERAL ARBITRATION ACT, 9 U.S.C. § 1 ................... iii, xv, xvii, 17, 18, 19, 20, 21 

FEDERAL ARBITRATION ACT, 9 U.S.C. § 2 .................................................... 8, 11, 20 

FEDERAL ARBITRATION ACT, 9 U.S.C. § 3 ................................................................. 8 

FEDERAL ARBITRATION ACT, 9 U.S.C. § 4 ................................................................. 8 

FEDERAL ARBITRATION ACT, 9 U.S.C. § 16.............................................................xv

FEDERAL ARBITRATION ACT, 9 U.S.C. § 16(a)(1) ...................................................xv

TEX. CIV. PRAC. & REM. CODE § 51.016 (West 2014) .................................... xv, 3, 7 

TEX. LAB. CODE § 406.033(a) (West 2015) .............................................................22

TEX. LAB. CODE § 406.033(e) (West 2015) .................................. v, 2, 21, 22, 23, 24 
xiv

RULES

TEX. R. APP. P. 9.4(i) ................................................................................................39

TEX. R. APP. P. 38.1(a) .............................................................................................. ii
xv

STATEMENT OF THE CASE

Nature of the Case: Plaintiff Mario Flores filed suit against AutoZone, Inc. and 

AutoZoners, L.L.C., asserting a personal injury claim arising 

out of an alleged workplace injury. (CR 9-16, 26) 

Trial court: The Honorable Ana Lisa Garza of the 229th Judicial District 

Court, Starr County, Texas. (CR 294; RR) 

Trial Court’s 

Disposition: The trial court signed an Order denying “Defendants’ 

Motion to Compel/Enforce Arbitration” on April 27, 2015. 

(CR 294) The AutoZone Appellants1 have pursued an 

interlocutory appeal from that order, which refused to 

enforce the arbitration provisions of the AutoZone Texas 

Occupational Injury Benefit Plan. (CR 299-300, 307-09) 

Parties in the 

Court of Appeals: The Appellants, AutoZone, Inc. and AutoZoners, L.L.C., are 

the Defendants below. Appellee, Mario Flores, is the 

Plaintiff below. 

Requested 

Disposition from 

This Court: The AutoZone Appellants request that the Court reverse the 

trial court’s order denying their Motion to Compel 

Arbitration; that the Court render judgment enforcing the 

parties’ agreement to arbitrate, compelling arbitration, and 

staying the trial court’s proceedings pending arbitration; and 

that the Court award Appellants their costs on appeal. 

 

1

This brief refers to the Appellants collectively as “AutoZone” or the “AutoZone Appellants.” 
xvi

STATEMENT REGARDING JURISDICTION

This interlocutory appeal is authorized by section 51.016 of the Texas Civil 

Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE § 51.016 (West 2014) 

(“In a matter subject to the Federal Arbitration Act (9 U.S.C. Section 1 et seq.), a 

person may take an appeal or writ of error to the court of appeals from the 

judgment or interlocutory order of a district court, county court at law, or county 

court under the same circumstances that an appeal from a federal district court’s 

order of decision would be permitted by 9 U.S.C. Section 16”); see also FEDERAL 

ARBITRATION ACT, 9 U.S.C. § 16(a)(1) (noting that appeal may be taken from 

order denying stay and from order denying petition to order arbitration to proceed). 
xvii

STATEMENT REGARDING ORAL ARGUMENT

 Though Appellants believe that this appeal can be resolved in their favor 

based on well-established federal and state precedent, oral argument would be 

helpful to permit the Court and counsel to discuss the specific terms of the parties’ 

agreement, the applicability of the Federal Arbitration Act, the distinction between 

matters to be determined by an arbitrator and those to be determined by the trial 

court, and the lack of any viable defense to the arbitration agreement’s 

enforcement. 
xviii

 ISSUE PRESENTED 

Issue No. 1:

Whether the AutoZone Appellants are entitled to have the arbitration provisions 

contained in the parties’ agreement enforced pursuant to the Federal Arbitration 

Act, resulting in a referral of this matter to arbitration. 

The arbitration agreement expressly invokes application of the Federal Arbitration 

Act, as well as AutoZone’s involvement in interstate commerce. That agreement is 

broad in scope – applying to claims for personal injury – and reserves to the 

arbitrator all questions regarding the interpretation, enforcement, and scope of the 

agreement. Regardless, Appellee Flores’ claims fall well within the agreement’s 

scope; and Flores’ only defenses – based on section 1’s exemption, the Texas 

Labor Code, and procedural unconscionability – have been rejected by Texas and 

federal courts alike. 
1

STATEMENT OF FACTS

 On July 28, 2005, Appellee Mario Flores signed the AutoZone Texas 

Occupational Injury Benefit Plan. (CR 77-139, 140) On the first page of that plan, 

employees were provided notice, in both English and Spanish, that the document 

concerned the employee’s rights and benefits under the plan. (CR 101) The notice 

further advised the employee that, if he had any difficulty understanding English, 

he should contact the risk manager at a designated address and telephone number 

during normal business hours. (CR 101) The plan itself contained several 

provisions addressing covered injuries, the benefits provided, and resolution 

procedures – including provisions mandating the application of the Federal 

Arbitration Act and the referral to arbitration of: 

any legal or equitable claim or dispute relating to enforcement or 

interpretation of the arbitration provisions in an AZTEX Advantage 

Acknowledgement Form or this arbitration requirement; and 

any legal or equitable claim by or with respect to you for any form of 

physical or psychological damage, harm or death which relates to an 

accident, occupational disease, or cumulative trauma (including, but 

not limited to, claims of negligence or gross negligence or 

discrimination; and claims for assault, battery, negligent 

hiring/training/supervision/retention, emotional distress, retaliatory 

discharge, or violation of any other noncriminal federal, state, or other 

governmental common law, statute, regulation or ordinance in 

connection with a job-related injury, regardless of whether the 

common law doctrine was recognized or whether the statute, 

regulation or ordinance was enacted before or after the effective date 

of this booklet. 
2

(CR 80-83) Flores not only signed the agreement’s acknowledgement form in 

2005, but he later acknowledged that he had read and understood the plan 

documents again in 2011 and 2012 – this time through a computer system that 

provided a Spanish translation of all relevant documents by merely making a 

Spanish-language selection. (CR 174-75, 180, 182, 187-91) 

 On March 27, 2013, Appellee Flores allegedly sustained an on-the-job injury 

while working as manager of an AutoZone store in Rio Grande City, Texas. (CR 

11) Specifically, Appellee Flores alleged that he fell from a ladder while 

attempting to ascend it with boxed merchandise. (CR 11) Though Appellee Flores 

applied for and received benefits under the plan, he nevertheless filed suit against 

AutoZone, Inc. and AutoZoners, L.L.C. on January 14, 2015, alleging negligence 

and seeking monetary relief. (CR 9-16, 26) The Defendants answered and, shortly 

thereafter, filed a Motion to Compel Arbitration, seeking enforcement of the 

arbitration provisions contained within the subject plan. (CR 28-31, 72-143) 

 Appellee Flores opposed the motion to compel, arguing: (1) that the 

arbitration agreement’s location within an “employment” agreement triggered an 

exception to the Federal Arbitration Act’s application; (2) section 406.033(e) of the 

Texas Labor Code precludes enforcement of the agreement; and (3) the agreement 

is procedurally unconscionable because Flores could not read or write English 

when he was asked to acknowledge it. (CR 145-60) The AutoZone Appellants 
3

replied, and the trial court held a hearing on April 13, 2015. (CR 144, 161-202; 

RR) Thereafter, Flores attempted to submit additional evidence in support of his 

unconscionability defense, to which AutoZone objected. (CR 203-87, 288-93) On 

April 27, 2015, the trial court signed an Order denying “Defendants’ Motion to 

Compel/Enforce Arbitration.” (CR 294) The AutoZone Appellants then timely 

perfected an interlocutory appeal to this Court pursuant to section 51.016 of the 

Texas Civil Practice and Remedies Code. (CR 299-300, 307-09) 

SUMMARY OF THE ARGUMENT

 Both Texas and federal courts have long acknowledged arbitration as a 

preferred alternative to litigation in a judicial forum, generally and in the specific 

context of occupational benefit plans. Those same courts have long enforced 

arbitration provisions under the Federal Arbitration Act when the contract 

expressly invokes the federal act and also when the contract involves interstate 

commerce. Not only does the arbitration agreement here expressly invoke the 

FAA in the plan’s provisions, but it expressly invokes AutoZone’s involvement 

with interstate commerce. Certainly, the invocation of the FAA is enough to 

trigger its application. But, should there be any doubt, AutoZone’s own 

involvement in interstate commerce – through its interstate purchase and sale of 

goods as expressed in the agreement, its incorporation in a different state, and the 

administration of medical benefits by an entity located in that same foreign state – 
4

sufficiently tethers the agreement to interstate commerce for application of the 

FAA. Thus, the Federal Arbitration Act and its strong presumption in favor of 

arbitration govern the agreement at issue in this appeal. 

 Entrenched legal principles require courts to construe arbitration provisions 

broadly and employ a presumption of arbitrability when analyzing whether a 

particular plaintiff’s claims fall within the scope of an agreement to arbitrate. 

Though the arbitration provisions refer all issues concerning the scope of the 

agreement to the arbitrator himself for determination, Appellee Flores’ personal 

injury claims fall squarely within the plan’s scope, which extends to and 

encompasses all claims for personal injury of whatever kind. Despite the strong 

public policy in favor of arbitration and the mountain of precedent requiring 

enforcement here, Appellee Flores nevertheless attempted a series of meritless 

roadblocks in an effort to thwart the motion to compel. But those efforts are futile. 

Texas courts have rejected every one of Flores’ defenses through binding 

precedent that requires this Court to do the same. 

 Flores first argued that the FAA does not apply to “contracts of 

employment” and that the occupational benefit plan was just such a contract. Not 

only is this a threshold question that the parties agreed to submit to the arbitrator 

for resolution, but the Supreme Court of the United States has explained (on more 

than one occasion) that the FAA expressly limits the phrase “contracts of 
5

employment” to contracts involving employees who are actually engaged in the 

shipment of goods – like seaman, railroad workers, and truck drivers. Flores 

works in a retail store – just as the employee did in the seminal Supreme Court 

case holding that such employment does not come within the only exception to the 

FAA’s application. Flores offered no evidence that he is actually engaged in the 

physical transport of goods across state lines because there is none. 

 Next, Flores argued that enforcing the arbitration agreement would violate 

the Texas Labor Code – even though the Supreme Court has addressed and 

rejected that exact argument. Though not clear, Flores appears to have conceded 

the point at the hearing on AutoZone’s motion to compel. Regardless, it, too, 

presents a threshold question of arbitrability and ultimately has no merit. Finally, 

Flores argued that the arbitration agreement is procedurally unconscionable 

because Flores, a Spanish speaker, could not read the agreement as presented to 

him in English. However, because his argument attacks the contract as a whole 

and because the arbitration agreement refers all matters relating to its interpretation 

and enforcement to binding arbitration, the Supreme Court of the United States has 

held that this question, too, is one for the arbitrator’s decision. 

Even assuming a court could address the issue, Flores offered no evidence of 

any inability to understand English and again thumbs his nose at binding precedent 

regardless. This Court – based on precedent from the Supreme Court of Texas – 
6

has rejected precisely this contention because illiteracy is no defense to contract. 

Specifically, the Fourth Court considered and rejected as a defense to arbitration a 

claimed inability to read English. In doing so, the Court refused to follow case law 

that Flores cited to the trial court in support of his claim. And even under the case 

law Flores cited below, he could not prevail. Those cases precluded arbitration 

based on affirmative conduct attempting to hide the arbitration agreement from the 

claimant, whereas here the evidence is precisely the opposite. That evidence 

includes a notice in Spanish – which Flores acknowledges he received – providing 

contact information to be used in the event anyone had difficulty understanding 

any part of the agreement. And, in the years after the initial acknowledgement, 

Flores acknowledged the agreement at least twice more on a computer system that 

translated all documents into Spanish at the click of a button. In short, Flores 

offered no viable defense to enforcement of the mandatory referral to arbitration; 

and the trial court erred in denying AutoZone’s motion to compel. The Court 

should reverse and render a referral to arbitration. 

ARGUMENT AND AUTHORITIES 

I. This Court Reviews the Trial Court’s Ruling De Novo

Review of a trial court’s decision on whether to enforce an arbitration 

provision – though frequently couched in terms of abuse of discretion – is made de 

novo when the appeal concerns legal issues, such as the interpretation of the 
7

arbitration provision itself, matters of statutory construction, and the viability of 

defenses to arbitration. See, e.g., City of San Antonio v. International Ass’n of Fire 

Fighters, Local 624, Nos. 04-12-00783-CV and 04-13-00109-CV, 2013 WL 

5508408, *3 (Tex. App. – San Antonio, Oct. 2, 2013, no pet., orig. proceeding) 

(mem. op.) (“The existence and the applicability of the arbitration agreement is a 

question of law and, thus, we review the decision de novo.”), quoting In re 

FirstMerit Bank, N.A., 52 S.W.3d 749, 753-54 (Tex. 2001) (orig. proceeding)2

 (if 

agreement includes claims and opposing party cannot prove any defense, “the trial 

court has no discretion but to compel arbitration and stay its own proceedings”); 

see also State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) (issues of statutory 

construction are questions of law that courts review de novo); Brand FX, LLC v. 

Rhine, 458 S.W.3d 195, 204 (Tex. App. – Fort Worth 2015, no pet.) (“Whether the 

party resisting arbitration has established a defense to arbitration – such as waiver 

or unconscionability – is a legal issue also subject to de novo review.”), citing In re 

Poly-Am., L.P., 262 S.W.3d 337, 348 (Tex. 2008) (orig. proceeding). Thus, the 

Court must review the trial court’s denial of the AutoZone Appellants’ motion to 

compel de novo. 

 

2

 Many of the judicial decisions cited in this brief arise out of original proceedings because, until 

the enactment of section 51.016 of the Texas Civil Practice and Remedies Code in 2009, parties 

did not have an interlocutory appellate remedy to challenge a trial court’s refusal to enforce 

arbitration provisions. See TEX. CIV. PRAC. & REM. CODE § 51.016 (West 2014); cf. In re Labatt 

Food Serv., L.P., 279 S.W.3d 640, 642-43 (Tex. 2009) (orig. proceeding) (“A party denied the 

right to arbitrate pursuant to an agreement subject to the FAA does not have an adequate remedy 

by appeal and is entitled to mandamus relief to correct a clear abuse of discretion”). 
8

II. The AutoZone Appellants Established the Existence of a Valid 

Arbitration Agreement Enforceable under the Federal Arbitration Act 

The Supreme Court of Texas has set forth the test that governs the 

determinations to be made in this interlocutory appeal: 

A party seeking to compel arbitration must establish the existence of 

an arbitration agreement, and show that the claims raised fall within 

the scope of that agreement. See Cantella & Co. v. Goodwin, 924 

S.W.2d 943, 944 (Tex. 1996). Once the party establishes a claim 

within the arbitration agreement, the trial court must compel 

arbitration and stay its own proceedings. Id.

In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999) (orig. 

proceeding);3see also In re Rubiola, 334 S.W.3d 220, 223 (Tex. 2011) (orig. 

proceeding); FEDERAL ARBITRATION ACT, 9 U.S.C. §§ 3, 4 (mandating referral to 

arbitration and stay of trial court proceedings when suit based on issue referable to 

arbitration under a written arbitration agreement). The Federal Arbitration Act, 

also known as the FAA, generally governs arbitration provisions contained in 

contracts that expressly invoke its application, as well as those contained in 

contracts that involve interstate commerce. FEDERAL ARBITRATION ACT, 9 U.S.C. 

§ 2; see also In re L & L Kempwood Assocs., L.P., 9 S.W.3d 125, 127 (Tex. 1999) 

(orig. proceeding) (per curiam). Even though the FAA is a federal act, Texas 

courts have the authority to enforce its provisions; and the FAA applies to cases 

pending in both state and federal courts when the agreement invokes its application 

 

3

Abrogated in part on other grounds by In re Halliburton Co., 80 S.W.3d 566 (Tex. 2002) (orig. 

proceeding). 
9

and also applies when the underlying transaction involves interstate commerce. 

Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 112 (2001); Cantella & Co., Inc. 

v. Goodwin, 924 S.W.2d 943, 944-45 (Tex. 1996) (orig. proceeding); Jack B. 

Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 268 (Tex. 1992) (orig. proceeding). 

By its motion and reply, the AutoZone Appellants fully met their burden.4 

They demonstrated an enforceable, written arbitration agreement; application of 

the Federal Arbitration Act; and that Appellee Flores’ claims fall within the scope 

of the arbitration provision – assuming this is a question up for judicial 

determination. Appellee Flores failed to assert any issue that would defeat 

enforcement of the plan’s arbitration provisions; and, thus, the trial court abused its 

discretion in denying the motion to compel. 

A. The Parties Entered into a Binding Arbitration Agreement to 

which the Federal Arbitration Act Applies

AutoZone’s Texas Occupational Injury Benefit Plan contains provisions 

requiring Flores to pursue any complaint against AutoZone through the appropriate 

arbitration procedures – including those relating to enforcement or interpretation of 

the arbitration provisions and those relating to any claim for personal injury. (CR 

80) The benefits plan is a contract to which the FAA, and its strong preference for 

and presumptions in favor of arbitration, apply. See, e.g., Shearson/American 

 

4

 Of course, by filing its motion to compel and seeking to enforce the plan’s arbitration 

provisions, the AutoZone Appellants do not waive any arguments they may have based on the 

Appellee Flores’ failure to follow any aspect of the dispute resolution procedure. 
10

Express, Inc. v. McMahon, 482 U.S. 220, 225 (1987) (noting that Federal 

Arbitration Act was specifically enacted to overcome “judicial hostility to 

arbitration agreements”). 

1. The Plan Expressly Invokes the FAA

The plan expressly provides for the application of the FAA. Specifically, 

the plan recites that “The Federal Arbitration Act will govern the interpretation, 

enforcement, and proceedings under this arbitration requirement.” (CR 82-83) 

Texas courts have held that the FAA governs a written arbitration agreement if the 

parties have expressly contracted for the FAA’s application. See, e.g., In re 

AdvancePCS Health, L.P., 172 S.W.3d 603, 605-06 & n.3 (Tex. 2005) (orig. 

proceeding); In re HEB Grocery Co., L.P., 299 S.W.3d 393, 396-97 (Tex. App. – 

Corpus Christi 2009, orig. proceeding); In re People’s Choice Home Loan, Inc., 

225 S.W.3d 35, 40 (Tex. App. – El Paso 2005, orig. proceeding); In re Kellogg 

Brown & Root, 80 S.W.3d 611, 617 (Tex. App. – Houston [1st Dist.] 2002, orig. 

proceeding); In re Alamo Lumber Co., 23 S.W.3d 577, 579 (Tex. App. – San 

Antonio 2000, orig. proceeding); see also Volt Information Sciences, Inc. v. Board 

of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478-79 (1989). 

Indeed, Texas courts enforce the parties’ choice of the FAA to govern their 

arbitration agreement regardless of the nexus to interstate commerce. See In re 

ReadyOne Indus., 294 S.W.3d 764, 769 (Tex. App. – El Paso 2009, orig. 
11

proceeding); In re Kellogg Brown & Root, 80 S.W.3d at 617; see also In re Jim 

Walter Homes, Inc., 207 S.W.3d 888, 896 (Tex. App. – Houston 14th Dist.] 2006, 

orig. proceeding) (“Courts honor the parties’ agreement to be bound by the FAA, 

upholding choice-of-law provisions providing for application of the FAA.”). And 

Appellee Flores’ response acknowledged the plan’s express invocation of the FAA. 

(CR 147) (“Plaintiff’s Benefit Plan states that the Federal Arbitration Act . . . will 

govern the interpretation, enforcement, and proceedings under the arbitration 

requirement.”). While Flores argued that he fell within an exception to the FAA’s 

application, he never disputed its general application otherwise and admitted 

precisely the opposite. 

2. The Plan Involves Interstate Commerce 

 Moreover, the plan involves interstate commerce as that concept has been 

defined by courts so as to trigger the FAA’s application. The FAA unquestionably 

applies if a contract involves commerce among the several states or “interstate 

commerce.” FEDERAL ARBITRATION ACT, 9 U.S.C. § 2. The United States 

Supreme Court has held that the word “involving,” as used in the FAA, is the 

functional equivalent of “affecting.” Allied-Bruce Terminix Cos., Inc. v. Dobson, 

513 U.S. 265, 273-74 (1995). As long as the contract or transaction affects 

interstate commerce, the FAA applies; it is irrelevant even whether the parties 

contemplated interstate commerce. Id. at 278-81. 
12

Texas courts likewise construe the term “commerce” broadly, holding that 

the amount of or effect on interstate commerce need not be substantial. In re L & 

L Kempwood Assocs., L.P., 9 S.W.3d 125, 127 (Tex. 1999) (orig. proceeding); In 

re Merrill Lynch Trust Co. FSB, 123 S.W.3d 549, 553 (Tex. App. – San Antonio 

2003, orig. proceeding); Lost Creek Mun. Utility Dist. v. Travis Indus. Painters, 

Inc., 827 S.W.2d 103, 105 (Tex. App. – Austin 1992, writ denied); see also BWI 

Cos., Inc. v. Beck, 910 S.W.2d 620, 621 (Tex. App. – Austin 1995, orig. 

proceeding). Instead, the contract need only involve or affect, i.e., relate to, 

interstate commerce because that “standard implements the strong federal policy 

favoring arbitration.” Lost Creek, 827 S.W.2d at 105. 

The benefits plan at issue here involves interstate commerce in more than 

one way. First, the plan itself expressly references the involvement of interstate 

commerce by explaining that “AutoZone is engaged in transactions involving 

interstate commerce (for example, purchasing goods and services from outside 

Texas which are shipped to Texas and providing goods and services to customers 

from other states) and your employment involves such commerce.” (CR 82) 

Appellee Flores never disputed the involvement of interstate commerce as set forth 

in the plan. See In re Big 8 Food Stores, Ltd., 166 S.W.3d 869, 880 (Tex. App. – 

El Paso 2005, orig. proceeding) (noting company’s plan recitation that it is 

involved in interstate commerce and lack of evidence to the contrary offered by 
13

claimant); In re Gardner Zemke Co., 978 S.W.2d 624, 626 (Tex. App. – El Paso 

1998, orig. proceeding) (noting that real parties in interest did not contest interstate 

commerce allegations). Flores’ employment relationship with AutoZone and the 

benefit plan itself necessarily “involve” interstate commerce. In re Big 8 Food 

Stores, Ltd., 166 S.W.3d at 880 (relationship between employer who is regularly 

engaged in activities related to interstate commerce and its employees is affected 

by interstate commerce as a matter of law). 

Additionally, the health benefits plan is administered out of state. 

Specifically, the plan administrator and director of benefits are located in 

Memphis, Tennessee. (CR 88-89, 97) Again, that connection is more than enough 

to “involve” interstate commerce to trigger application of the FAA. See, e.g., In re 

Nexion Health at Humble, Inc., 173 S.W.3d 67, 69 (Tex. 2005) (orig. proceeding) 

(“Because ‘commerce’ is broadly construed, the evidence of Medicare payments 

made to HHC on John’s behalf is sufficient to establish interstate commerce and 

the FAA’s application in this case”); City of San Antonio v. International Ass’n of 

Fire Fighters, Local 624, Nos. 04-12-00783-CV and 04-13-00109-CV, 2013 WL 

5508408, *2 (Tex. App. – San Antonio, Oct. 2, 2013, no pet., orig. proceeding) 

(mem. op.) (FAA applied to Collective Bargaining Agreement that encompassed 

provision of health insurance benefits); Petroleum Analyzer Co. LP v. Franek 

Olstowki, No. 01-09-00076-CV, 2010 WL 2789016, *6 (Tex. App. – Houston [1st 
14

Dist.], Jul. 15, 2010, no pet.) (mem. op.) (“[E]ven if the parties had not expressly 

agreed that interstate commerce is affected, PAC is a Delaware limited partnership; 

therefore, this agreement affects interstate commerce.”); Manahan v. Meyer, 862 

S.W.2d 130, 133 (Tex. App. – Houston [1st Dist.] 1993, writ denied) (“Appellants 

pled that Haworth, a Michigan corporation with a home office in Michigan, bought 

insurance from Safeco, whose home office is in Washington, to cover Manahan 

and other Haworth employees working in Texas. Thus, interstate commerce by 

Haworth was admitted”); United States v. Lauersen, No. 98 CR. 1134(WHP), 1999 

WL 637237, *6 (S.D.N.Y., Aug. 20, 1999) (not designated for publication) (“It 

requires little effort, and certainly no accretion of ‘inference upon inference,’ . . . to 

find a rational bases for concluding that the administration of private health care 

programs is an economic activity that substantially affects interstate commerce”). 

Based on the foregoing, the FAA controls. 

B. The Arbitration Agreement Encompasses Mario Flores’ Claims; 

Regardless, the Issue Is One for the Arbitrator to Decide

1. The Arbitration Agreement Reserves for the Arbitrator’s 

Decision the Issue of Whether Flores’ Claims Fall within Its 

Scope

As noted above, the arbitration provisions are broad in scope, covering all 

manner of personal injury, as well as all issues regarding relating to the 

enforcement or interpretation of the arbitration provisions and “[t]he determination 

of whether a claim is covered by these provisions.” (CR 80) As courts have 
15

recognized, when an arbitration agreement includes such expansive language, the 

determination of whether a claim falls within the scope of such an agreement is 

reserved for the arbitrator. See, e.g., Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 

61 & n.37 (Tex. 2008); Seven Hills Commercial, LLC v. Mirabal Custom Homes, 

Inc., 442 S.W.3d 706, 711 (Tex. App. – Dallas 2014, pet. denied); IHS Acquisition 

No. 171, Inc. v. Beatty-Ortiz, 387 S.W.3d 799, 807-08 (Tex. App. – El Paso 2012, 

no pet.) (“An arbitration provision may give the arbitrator the power to resolve 

gateway issues regarding validity and enforceability of the arbitration agreement. 

In that event, the entire matter of arbitrability is transferred from the courts to the 

arbitrator. . . . Arbitration agreements that clearly and unmistakably show intent to 

assign gateway issues to the arbitrator are fully enforceable.”), citing Rent-ACenter, West, Inc. v. Jackson, 561 U.S. 63, 72-73 (2010); Ernst & Young LLP v. 

Martin, 278 S.W.3d 497, 500-01 (Tex. App. – Houston [14th Dist.] 2009, no pet., 

orig. proceeding); Valdez v. Autozone, Inc., No. H-14-3386, 2015 WL 1099700, *1 

(S.D. Tex., Feb. 17, 2015) (not designated for publication). 

Given the foregoing, the arbitration provisions expressly reserve any 

questions regarding the scope of the arbitration agreement and whether it 

encompasses Mario Flores’ claims for the arbitrator’s determination. Regardless, 

Mario Flores’ claim for damages alleged to have resulted from an on-the-job injury 

clearly fall within the provisions’ scope. 
16

2. Even if the Scope of the Arbitration Agreement Is an Issue 

for Judicial Determination, Flores’ Personal Injury Claims 

Fall Well within the Agreement’s Terms

When deciding whether claims fall within the terms of an arbitration 

agreement, courts employ a strong presumption in favor of arbitration. In re 

Rubiola, 334 S.W.3d at 225, citing Cantella & Co., Inc., 924 S.W.2d at 944 

(“[f]ederal and state law strongly favor arbitration,” and “a presumption exists in 

favor of agreements to arbitrate under the FAA”); Prudential Sec. Inc. v. Marshall, 

909 S.W.2d 896, 899 (Tex. 1995) (orig. proceeding) (under the FAA, “any doubts 

as to whether claims fall within the scope of the agreement must be resolved in 

favor of arbitration,” and that “[t]he policy in favor of enforcing arbitration 

agreements is so compelling that a court should not deny arbitration ‘unless it can 

be said with positive assurance that an arbitration clause is not susceptible of an 

interpretation which would cover the dispute at issue’”). 

Here, the provision in question requires, in part, that all claims for physical 

damage or harm made in connection with a job-related injury, are to be resolved by 

arbitration. (CR 80) Given that Mario Flores sues for precisely that, his claims fall 

within the arbitration provisions’ scope. (CR 9-16) See, e.g., In re HEB Grocery 

Co., L.P., 299 S.W.3d 393, 398 (Tex. App. – Corpus Christi, 2009, orig. 

proceeding) (agreement, which included provision to submit any claims for 

occupational injury to binding arbitration, encompassed claimant’s personal injury 
17

claim); In re H.E. Butt Grocery Co., 17 S.W.3d 360, 367 (Tex. App. – Houston 

[14th Dist.] 2000, orig. proceeding) (same). Because AutoZone demonstrated the 

existence of a valid agreement and claims that fall within its scope (though that 

issue is one for the arbitrator’s determination), the trial court was obligated to grant 

AutoZone’s motion. The Court should reverse the trial court’s denial. 

III. None of Appellee Flores’ Efforts to Thwart the Arbitration Agreement 

Have Merit

 Once the movant has demonstrated a mandatory referral to arbitration and 

the party opposing arbitration has failed to prove a defense to its enforcement, the 

trial court has no discretion but to compel arbitration and stay its own proceedings. 

In re FirstMerit Bank, N.A., 52 S.W.3d at 753-54; see also J.M. Davidson v. 

Webster, 128 S.W.3d 223, 227 (Tex. 2003) (stating that, if trial court finds a valid 

agreement, burden shifts to party opposing arbitration to raise an affirmative 

defense to enforcement). Appellee Flores tried to interpose three roadblocks to 

AutoZone’s motion to compel: (1) the exception for “contracts of employment” 

contained in section 1 of the FAA; (2) the purported bar of the Texas Labor Code; 

and (3) a claim of procedural unconscionability. Courts have rejected all three in 

contexts analogous to this case and did so through binding precedent that this 

Court is bound to follow. Moreover, the language of the parties’ arbitration 

agreement requires these threshold issues and defenses to be referred to arbitration 

for resolution by the arbitrator. Because Flores raises arguments that must be 
18

decided by the arbitrator and has, in any event, failed to prove any defense, the trial 

court erred in denying the motion to compel.

A. Courts Recognize That the Federal Arbitration Act’s Exception 

for “Employment” Agreements Applies Solely to Transportation 

Workers, Unlike Appellee Flores

 1. Flores Cannot Argue an Exception to the FAA When He 

Expressly Agreed to the FAA’s Application

 Appellee Flores’ first defense against enforcement of the arbitration 

agreement under the FAA was to point to section 1 of the FAA and argue that the 

benefits plan constitutes a “contract of employment” exempt from application of 

the FAA. See 9 U.S.C. § 1 (“nothing herein contained shall apply to contracts of 

employment of seaman, railroad employees, or other class of workers engaged in 

foreign or interstate commerce”). But, as discussed above, the parties expressly 

agreed to arbitrate their disputes pursuant to the Federal Arbitration Act. (CR 82-

83) Given that express agreement, Flores cannot now argue that the FAA does not 

govern interpretation and enforcement. And any such argument would, by 

necessity, employ circular logic – for, it is only through application of the FAA 

that Flores invokes section 1’s exception. (CR 147) It makes no sense for the 

parties to agree to arbitration and to agree that the FAA governs their agreement, 

only to be told that they have no enforceable agreement under the FAA because 

that invocation was contained in a “contract of employment.” 
19

 2. Any Question Regarding Interpretation or Enforcement of 

the Agreement Must Be Decided by the Arbitrator

 In fact, given the contract’s express invocation of the FAA as well as its 

invocation of the AAA rules, the question asserted by Flores necessarily involves 

“enforcement or interpretation” of the agreement or at least a question of the 

arbitrator’s jurisdiction – which the parties expressly agreed would be determined 

by the arbitrator. (CR 80-83) As noted above, parties may contract for threshold 

determinations to arbitrability to be made by the arbitrator himself – including a 

question of whether the exception contained in section 1 applies; and that is 

precisely what the parties did here. See, e.g., Green v. SuperShuttle Int’l, Inc., 653 

F.3d 766, 768-69 (8th Cir. 2011) (holding that parties, who invoked the AAA rules 

giving the arbitrator power to determine his own jurisdiction, agreed to allow the 

arbitrator to determine threshold questions such as whether section 1’s exception 

applied to the parties’ agreement to preclude governance of the FAA). 

 3. Regardless, the Supreme Court Has Limited the Exception 

to Transportation Workers Actually Engaged in the 

Interstate Transport of Goods

 Regardless, the Supreme Court of the United States held in Circuit City 

Stores, Inc. v. Adams, 532 U.S. 105, 112, 119 (2001), that section 1 applies only to 

“contracts of employment of transportation workers.” (emphasis added); accord 

EEOC v. Waffle House, Inc., 534 U.S. 279, 289 (2002) (“Employment contracts, 

except for those covering workers engaged in transportation, are covered by the 
20

[FAA].”); see also BWI Cos. v. Beck, 910 S.W.2d 620, 622 (Tex. App. – Austin 

1995, orig. proceeding); White-Weld & Co., Inc. v. Mosser, 587 S.W.2d 485, 487 

(Tex.Civ.App. – Dallas 1979, writ ref’d n.r.e.). 

 Importantly, the Circuit City Court explained that the phrase “engaged in . . . 

interstate commerce,” as used in section 1’s exemption, was considerably narrower 

than the phrase “involving commerce” used in section 2 to describe the kinds of 

agreements to which the FAA applies. 532 U.S. at 112. Flores, at the hearing on 

AutoZone’s motion to compel, led the trial court astray by collapsing the two 

inquiries. (RR at 7-8) But they are different, as the Supreme Court of the United 

States has explained. The FAA applies to employment contracts that evidence a 

transaction involving interstate commerce – the only exception being when the 

employee is actually engaged in such commerce, i.e., actually engaged in the 

transportation of goods. 9 U.S.C. §§ 1, 2; Circuit City, 532 U.S. at 114-19. 

 Appellee Flores made no argument and offered no evidence that he was a 

transportation worker actually engaged in the movement of goods in interstate 

commerce within the meaning of section 1 of the FAA. Rather, he confirmed his 

work in a single retail location – just like the retail employee the Supreme Court 

found did not fall within section 1’s exception. Circuit City, 532 U.S. at 109. (CR 

145) Rather than acknowledge governing Supreme Court authority, Flores offered 

a single citation to In re Swift Transp. Co., 311 S.W.3d 484, 486 (Tex. App. – El 
21

Paso 2009, orig. proceeding), in which the court of appeals held that the FAA did 

not apply to an arbitration agreement between a truck driver and his employer. But 

what Flores failed to understand is that trucks drivers are “transportation workers” 

as that term is used in section 1, making In re Swift’s holding inapplicable here to a 

retail employee. As a result, the trial court’s order denying the AutoZone 

Appellants’ motion to compel should be reversed and the agreement enforced. 

B. The Texas Workers’ Compensation Act Does Not Preclude 

Enforcement of the Plan’s Arbitration Provisions, Nor Could It in 

Light of the Federal Arbitration Act’s Supremacy5

Appellee Flores next asserted that the arbitration agreement violated section 

406.033(e) of the Texas Labor Code because it waived his cause of action before 

his workplace injury occurred. That argument, too, lacks merit and provides no 

basis for the denial of AutoZone’s motion to compel. 

 

5

 In the context of this point, Appellee Flores references that the AutoZone Appellants did not 

sign the arbitration agreement and that he had no recollection of doing so. Assuming that this 

could be construed as an additional defense to the enforcement of the arbitration provisions, the 

FAA does not require arbitration clauses to be signed, as long as they are written and agreed to 

by the parties. See, e.g., In re AdvancePCS Health, L.P., 172 S.W.3d 603, 606 n.5 (Tex. 2005); 

see also In re Macy’s Tex., Inc., 291 S.W.3d 418, 418 (Tex. 2009) (orig. proceeding) (per 

curiam) (“[t]he FAA contains no requirements for the form or specificity of arbitration 

agreements except that they be in writing; it does not even require that they be signed”); see also 

In re Dillard Dep’t Stores, 198 S.W.3d 778, 780-81 (Tex. 2006) (orig. proceeding) (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 Halliburton Co., 80 S.W.3d 

566, 569 (Tex. 2002) (orig. proceeding) (holding that continued employment constituted 

acceptance as a matter of law). Regardless, Appellee Flores did sign the acknowledgement form, 

which reiterated his acceptance and agreement to comply with the plan’s arbitration provisions. 

See, e.g., In re Dallas Peterbilt, Ltd., L.L.P., 196 S.W.3d 161, 163 (Tex. 2006) (orig. proceeding) 

(by signing the acknowledgement, employee acknowledged receipt of the mutual agreement to 

arbitration claims); In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005) (orig. proceeding) 

(“Absent fraud, misrepresentation, or deceit, a party is bound by the terms of the contract he 

signed, regardless of whether he read it or thought it had different terms.”). (CR 140) 
22

 1. The Supreme Court of Texas Has Rejected This Exact 

Argument, and Flores Conceded as Much Below

 Section 406.033(e) of the Texas Labor Code provides that a cause of action 

against an employer by an employee not covered by workers’ compensation 

insurance brought to recover damages for personal injuries sustained in the course 

and scope of employment “may not be waived by an employee before the 

employee’s injury or death.” TEX. LAB. CODE § 406.033(a), (e) (West 2015). 

However, section 406.033(e) is no impediment to arbitration because the Supreme 

Court of Texas has rejected Flores’ exact argument. In re Golden Peanut Co., 

LLC, 298 S.W.3d 629, 631 (Tex. 2009) (orig. proceeding) (per curiam). 

 Specifically, the Supreme Court examined the interaction between section 

406.033 and the FAA and held that section 406.033(e) does not render an 

arbitration agreement void. In re Golden Peanut Co., LLC, 298 S.W.3d at 631. 

The Court explained that “an agreement to arbitration is a waiver of neither a cause 

of action nor the rights provided under section 406.033(a), but rather an agreement 

that those claims should be tried in a specific forum. Accordingly, section 

406.033(e) does not render the arbitration agreement void.” See also In re Odyssey 

Healthcare, Inc., 310 S.W.3d 419, 423 (Tex. 2010) (orig. proceeding) (same). 

 In apparent recognition of this precedent, Flores withdrew the point at the 

hearing on AutoZone’s motion to compel. (RR at 7) Thus, to the extent that this 

argument would not also be subject to arbitration as one of the threshold questions 
23

the parties agreed would be resolved by the arbitrator – because the parties agreed 

to submit all issues of the agreement’s interpretation and enforcement to arbitration 

– Flores’ concession and binding Supreme Court precedent preclude it anyway. 

 2. To the Extent Section 406.003(e) Would Preclude 

Arbitration, the FAA Would Preempt It

Moreover, the FAA would preempt section 406.033(e) to the extent that it 

would preclude an otherwise unenforceable arbitration agreement. Under the 

supremacy clause of the United States Constitution, the FAA preempts all 

otherwise applicable state laws. U.S. CONST. art. VI, cl.2; see also Southland 

Corp. v. Keating, 465 U.S. 1, 14-16 (1984) (Federal Arbitration Act creates 

substantive rules applicable in state and federal courts to prevent states from 

limiting the enforceability of arbitration agreements). By enacting the FAA, 

Congress intended to foreclose state legislative attempts to undercut the 

enforceability of arbitration agreements. Southland, 465 U.S. at 16. 

“In short, the FAA ‘represents a federal policy favoring arbitration, 

notwithstanding any state substantive or procedural policies to the contrary.” In re 

MP Ventures of So. Tex., Ltd., 276 S.W.3d 524, 529 (Tex. App. – San Antonio 

2008, orig. proceeding), quoting In re Border Steel, Inc., 229 S.W.3d 825, 831 

(Tex. App. – El Paso 2007, orig. proceeding); see also Jack B. Anglin Co., 842 

S.W.2d at 270-71 (holding that FAA preempts application of non-waiver provision 

of the Texas Deceptive Trade Practices Act); In re Turner Bros. Trucking Co., 8 
24

S.W.3d 370, 374 (Tex. App. – Texarkana 1999, orig. proceeding) (the FAA “takes 

precedence over state attempts, legislative or judicial, to undercut the 

enforceability of arbitration agreements”). As a result, to the extent section 

406.033(e) could be said to conflict with the FAA following In re Golden Peanut 

Co., to the extent Flores did not concede the point below, and to the extent the 

issue were one for the Court to decide, the FAA would preempt section 406.033(e) 

and preclude it from barring enforcement of the parties’ arbitration agreement. See 

In re Border Steel, Inc., 229 S.W.3d 825, 832 (Tex. App. – El Paso 2007, no pet.).

C. Appellee Flores Failed to Demonstrate Procedural 

Unconscionability6

 1. Appellee Flores Attacked the Parties’ Agreement as a 

Whole – an Argument That the Supreme Court of the 

United States Has Held Must Be Resolved by the Arbitrator

 In the trial court, Appellee Flores asserted that the arbitration agreement was 

procedurally unconscionable because he was unable to read the English version 

with which he was provided. (CR 149-51) While arbitration agreements “may be 

 

6

Flores’ response specifically argues only procedural unconscionability. (CR 149-51; RR 8-11) 

That said, he sprinkles references to substantive unconscionability in that same discussion, 

without making any argument that the agreement is substantively unconscionable. (CR 149-51; 

RR 9) To be thorough, the AutoZone Appellants would note that the Supreme Court of Texas 

has held that “there is nothing per se unconscionable about arbitration agreements.” In re Olshan 

Foundation Repair Co., LLC, 328 S.W.3d 883, 892 (Tex. 2010) (orig. proceeding), quoting EZ 

Pawn Corp. v. Mancias, 934 S.W.2d 87, 90-91 (Tex. 1996) (orig. proceeding) (per curiam). 

Instead, both Texas and federal courts favor arbitration. Id. Likewise, “[a]dhesion contracts are 

not automatically or per se unconscionable,” including those that contain arbitration provisions. 

In re Lyon Fin. Servs., 257 S.W.3d 228, 233 (Tex. 2008) (orig. proceeding). Moreover, 

“[b]ecause an employer has a general right under Texas law to discharge an at-will employee, it 

cannot be unconscionable, without more, merely to premise continued employment on 

acceptance of new or additional employment terms.” In re Halliburton Co., 80 S.W.3d at 572. 
25

invalidated by ‘generally applicable contract defenses, such as fraud, duress, or 

unconscionability,’” (Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68

(2010)), Flores necessarily attacks the benefits agreement as a whole – as opposed 

to the arbitration agreement exclusively. The arbitration provisions at issue were 

one part of a larger occupational injury benefit plan, which Appellee Flores 

acknowledged by his signature on July 28, 2005. (CR 140) Flores’ claim of 

invalidity by virtue of being unable to read any part of that agreement necessarily 

challenges the entire agreement rather than just the arbitration provision in 

particular. 

 Arguments against the validity of an agreement, of which an arbitration 

provision is merely a part, are referable to arbitration along with the rest of the 

case. See, e.g., Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 406 

(1966). In Prima Paint, a party defended against a referral to arbitration on the 

basis that it had been fraudulently induced to sign the contract containing the 

arbitration provision. 388 U.S. at 404. Settling a conflict among the appellate 

courts, the Supreme Court of the United States held that “a federal court may 

consider only issues relating to the making and performance of the agreement to 

arbitrate.” Id. “[U]nless the challenge is to the arbitration clause itself, the issue of 

the contract’s validity is considered by the arbitrator in the first instance.” Buckeye 

Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46 (2006) (holding that 
26

Prima Paint rule also applies to FAA cases pending in state courts, as a matter of 

substantive federal arbitration law). “[A] party’s challenge to another provision of 

the contract, or to the contract as a whole, does not prevent a court from enforcing 

a specific agreement to arbitrate.” Rent-A-Center, 561 U.S. at 70. 

 Following these principles, Texas courts have held that the defense of 

unconscionability must be determined by the arbitrator when it necessarily refers to 

the agreement as a whole. See, e.g., In re Olshan Found. Repair Co., 328 S.W.3d 

883, 898 (Tex. 2010) (orig. proceeding) (“[W]hen the parties have contracted for 

arbitration of their disputes, a trial court ‘may consider only issues relating to the 

making and performance of the agreement to arbitrate.”); Perry Homes v. Cull, 258 

S.W.3d 580, 589 (Tex. 2008) (“[A]rbitrators generally must decide defenses that 

apply to the whole contract, while courts decide defenses relating solely to the 

arbitration clause.”); In re FirstMerit Bank, N.A., 52 S.W.3d at 756 (“The do Los 

Santoses assert the defenses of unconscionability, duress, fraudulent inducement, 

and revocation. We again note that these defenses must specifically relate to the 

Arbitration Addendum itself, not the contract as a whole, if they are to defeat 

arbitration.”); Henry v. Gonzalez, 18 S.W.3d 684, 691 (Tex. App. – San Antonio 

2000, pet. dism’d, orig. proceeding) (allegation by non-movant that he was 

fraudulently induced to sign the contract containing arbitration clause due to his 

decreased mental capacity was an issue referable to arbitration).
27

 In a case bearing striking similarities to the circumstances alleged here, a 

federal district court held that a claim of procedural unconscionability was for the 

arbitrator to determine. See Estate of Benitez v. Sears, Roebuck & Co., No. 3:13-

CV-0468-D, 2013 WL 4223875 (N.D. Tex., Aug. 14, 2013). There, the claimant 

argued that he could not read or write English and had little formal education in 

Spanish and, therefore, the arbitration agreement was invalid. Id. at *3. The court 

held that “because plaintiffs’ challenge to validity attacks the entire agreement, not 

the arbitration agreement specifically, [it] therefore is a question for the arbitrator 

to decide.” Id. at **3-4 (“[T]he arbitration agreement in this case is contained 

within the 51-page Plan; it is not a stand-alone agreement. And when Juan 

electronically acknowledged that he had completed his Plan training, he was 

acknowledging that he had received training regarding the Plan and its 

requirements generally, which included the arbitration agreement. Plaintiffs 

provide no evidence that Juan’s illiteracy in English, limited English 

comprehension, or computer illiteracy invalidate the arbitration clause specifically

rather than the Plan in its entirety.”) (emphasis in original). 

 Because the claim of unconscionability went to the plan as a whole – even 

though the plaintiffs only desired to invalidate the arbitration clause – the decision 

was for the arbitrator to make in this case just as in Estate of Benitez. As a result, 

the trial court erred in denying AutoZone’s motion to compel. 
28

 2. Even Assuming a Court Could Decide the Issue, This Court 

Has Held That Illiteracy Is No Defense to Arbitration 

In any event, Appellee Flores’ defense of procedural unconscionability 

based on his purported illiteracy in English finds no support in binding Texas law. 

Flores had the burden of showing that the arbitration provision is unconscionable – 

a burden he failed to meet. Fleetwood Enters., Inc. v. Gaskamp, 280 F.3d 1069, 

1077 (5th Cir. 2002) (“The party contesting the contractual arbitration provision 

has the burden to show procedural unconscionability.”). Instead, the great weight 

of authority – including binding precedent from the Supreme Court of Texas and 

this Court – has rejected Appellee Flores’ attempted defense on a similar record. 

a. Flores’ “Proof” Constitutes Barred Parol Evidence 

and, Thus, Cannot Be Considered by the Court

Flores’ unconscionability defense focused on his alleged inability to read, in 

English, the benefits plan and the arbitration provisions that were provided to him 

initially. As discussed in detail below, Texas law provides no contractual defense 

based on an inability to read English. Regardless, the parol evidence rule 

precludes the Court from considering any evidence Flores attempted to offer. 

The acknowledgement form signed by Flores expressly avows that he 

received and read, or had the opportunity to read, the materials attached to 

AutoZone’s motion to compel, including the arbitration provisions. (CR 140) This 

is in addition to the front cover of the plan, which includes a notice in Spanish 
29

providing a contract for further discussion of the plan in Spanish. (CR 101) As a 

result, any claim by Flores that he could not read or did not have the opportunity to 

read the plan documents in Spanish contradicts their express terms and cannot be 

considered. See, e.g., In re H.E. Butt Grocery Co., 17 S.W.3d 360, 371 (Tex. App. 

– Houston [14th Dist.] 2000, orig. proceeding); see also Kuper v. Schmidt, 161 

Tex. 189, 338 S.W.2d 948, 952 (1960) (explaining that parol evidence rule 

precludes consideration of extrinsic evidence to contradict, vary, or add to the 

terms of an unambiguous written agreement absent fraud, accident, or mistake); 

see also Cintas Corp. v. Quevedo, No. 04-11-00142-CV, 2012 WL 1940642, *3 

(Tex. App. – San Antonio, May 30, 2012, no pet.) (mem. op.) (“The parol evidence 

rule is not a rule of evidence, but a rule of substantive law. . . . Testimony that 

varies the legal effect of a writing, whether objected to or not, is without probative 

force.”). Flores is without evidence to support a procedural unconscionability 

defense, and the trial court erred in denying AutoZone’s motion to compel. 

b. Texas Law Does Not Recognize an Inability to Read 

English as a Defense to Contract – Even with an 

Unconscionability Label – and Flores Offered No 

Supportive Evidence in Any Event

i. Flores Offered No Proof of an Inability to 

Speak, Read, or Write English

Generally speaking, procedural unconscionability refers to the circumstances 

surrounding the adoption of a contract. In re Halliburton Co., 80 S.W.3d at 571. 
30

It relates to the making or inducement of the contract, focusing on the facts 

surrounding the bargaining process. TMI, Inc. v. Brooks, 225 S.W.3d 783, 792 

(Tex. App. – Houston [14th Dist.] 2007, pet. denied, orig. proceeding). Again, 

Flores based his assertion of procedural unconscionability on his claim that he 

cannot read or write English, coupled with his claim that the plan documents he 

received were in English. (CR 149-51) However, even assuming Flores’ proffer 

could be considered, Flores offered absolutely no evidence that he could not speak, 

read, or write English. His initial affidavit avers only that he did not receive the 

AZTEC Advantage document in Spanish. (CR 155) It nowhere denies an ability 

to read the English version that he acknowledged he did receive. (CR 140) And 

the “evidence” he tried to offer by way of his post-hearing supplement likewise 

falls far short of that needed to prove an unconscionability defense. 

After the hearing on AutoZone’s motion to compel, Flores filed 

supplemental evidence, to which AutoZone objected. (CR 203-87, 288-93) That 

offer consisted of employment forms and the transcripts of telephone conversations 

that purportedly had been translated from Spanish to English. (CR 207-87) Those 

documents nowhere demonstrate Flores’ inability to speak, read, or write English. 

Indeed, on their face, many of them demonstrate precisely the opposite. To fill in 

the blanks, Flores offered only unsworn statements of his purported inability to 

speak, read, or write English – in the notice of filing to which the supplemental 
31

evidence was attached. (CR 204) However, neither statements contained in 

motions nor arguments of counsel are evidence. Elkins v. Stotts-Brown, 103 

S.W.3d 664, 669 (Tex. App. – Dallas 2003, no pet.); Madeksho v. Abraham, 

Watkins, Nichols & Friend, 57 S.W.3d 448, 455 (Tex. App. – Houston [14th Dist.] 

2001, pet. denied) (noting that conclusory arguments contained in summaryjudgment response are not evidence). Flores failed to include in the record any 

evidence to substantiate his claim of procedural unconscionability. 

ii. Texas Does Not Recognize Illiteracy as a 

Defense to Contract Generally or as a Defense 

to Arbitration Specifically

Regardless, Texas courts have held for decades that, absent proof of mental 

incapacity, a person who signs a contract is presumed to have read and understood 

that contract unless he was prevented from doing so by trick or artifice. See 

Associated Employers Lloyds v. Howard, 156 Tex. 277, 294 S.W.2d 706, 708 

(1956); Indemnity Ins. Co. of N. Am. v. W.L. Macatee & Sons, 129 Tex. 166, 101 

S.W.2d 553, 556-57 (1937). Equally well-settled is that illiteracy will not relieve a 

party from the consequences of a contract because “[e]very person who has the 

capacity to enter into a contract, in the absence of fraud, misrepresentation, and 

concealment, is held to know what words were used in the contract, to know their 

meaning, and to understand their legal effect.” Vera v. North Star Dodge Sales, 

Inc., 989 S.W.2d 13, 17 (Tex. App. – San Antonio 1998, no pet.). 
32

Numerous courts have rejected allegations similar to those asserted by 

Flores in an effort to avoid an otherwise binding agreement. See, e.g., Lopez v. 

Garbage Man, Inc., No. 12-08-00384-CV, 2011 WL 1259523, **7-8 (Tex. App. – 

Tyler, Mar. 31, 2011, no pet.) (mem. op.) (reiterating principles set forth above and 

rejecting challenge to release agreement based on claim that plaintiff was limited 

in his ability to read or write English and, thus, unable to understand complex legal 

document such as release agreement); In re Big 8 Food Stores, Ltd., 166 S.W.3d 

869, 878 (Tex. App. – El Paso 2005, orig. proceeding) (“No evidence suggests that 

Marquez lacked the mental capacity to contract. She argues that she was rushed to 

sign the agreement and did not understand its terms. 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.”); De Villagomez v. First Nat’l Bank, No. 13-04-00367-CV, 2005 WL 

1832800, **1-2 (Tex. App. – Corpus Christi, Aug. 4, 2005, pet. denied) (mem. op.) 

(“In the absence of fraud, 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.”); Tamez v. Southwestern Motor Transport, Inc., 155 

S.W.3d 564, 570 (Tex. App. – San Antonio 2004, no pet.) (reiterating principles 

set forth above and holding that the plaintiff, a resident alien from Mexico and for 
33

whom English was not his first language, was bound by release agreement absent 

evidence of fraud, misrepresentation, or concealment in the procurement of the 

agreement, of which there was no evidence); Nguyen Ngoc Giao v. Smith & Lamm, 

P.C., 714 S.W.2d 144, 146 (Tex. App. – Houston [1st Dist.] 1986, no writ) 

(rejecting challenge to contract by one claiming that he could not read, write, or 

speak English). 

In In re Ledet, No. 04-04-00411-CV, 2004 WL 2945699, **4-6 (Tex. App. – 

San Antonio, Dec. 22, 2004, orig. proceeding) (mem. op.), this Court applied these 

well-entrenched principles of Texas contract law to reject a claim of procedural 

unconscionability by one seeking to avoid an arbitration agreement. In that case, 

the claimant asserted procedurally unconscionability of an arbitration agreement 

based on his inability to understand, speak, or read English; the failure of anyone 

to explain the agreement to him; and his having felt pressured to sign the 

arbitration agreement. Id. at *5. The claimant did not ask questions about the 

agreement or seek an explanation of it. Id. 

The Ledet Court referenced its prior decision in Vera and noted the absence 

of any allegation of fraud, misrepresentation, or concealment. 2004 WL 2945699, 

at **5-6. “That [the claimant] did not speak English and therefore could not read 

the contract does not affect the validity of the contract.” Id. at *6. The Court 

enforced the arbitration agreement and held that the trial court had no discretion 
34

but to compel arbitration and stay its own proceedings. Id.; see also ReadyOne 

Indus., Inc. v. Flores, ___ S.W.3d ___, 2014 WL 6982275, **8-9 (Tex. App. – El 

Paso, Dec. 10, 2014, pet. filed) (rejecting defense of procedural unconscionability 

asserted by claimant who was unable to read English because company provided 

him with Spanish language version of documents and because claimant, who 

signed acknowledgment form, was presumed to have known and fully 

comprehended document and its legal effect absent evidence of trick or artifice); In 

re Border Steel, Inc., 229 S.W.3d 825, 833-35 (Tex. App. – El Paso 2007, orig. 

proceeding) (rejecting claim of procedural unconscionability due to Spanish 

speaking individual’s inability to read agreement in English; evidence showed that 

agreement was available in both English and Spanish translations, and illiteracy or 

a language barrier is no defense to contract; moreover, claimant accepted benefits 

under the plan); In re Rangel, 45 S.W.3d 783, 786-87 (Tex. App. – Waco 2001, 

orig. proceeding) (rejecting claim of procedural unconscionability asserted by 75-

year-old man who had never attended school, was functionally illiterate, and was 

hard of hearing; claimant never gave the impression he did not understand or could 

not read the contract, the arbitration provision was never hidden from him, and 

there was no evidence that the company concealed or misstated the existence or 

terms of the arbitration provision). Flores has no unconscionability defense here. 
35

iii. This Court Has Rejected Flores’ Authority, and 

Flores Offered No Evidence of Fraud on 

AutoZone’s Part Regardless

Despite this clear precedent, Flores relied on two decisions to support a 

defense of procedural unconscionability here: In re Turner Bros. Trucking Co., 

Inc., 8 S.W.3d 370 (Tex. App. – Texarkana 1999, orig. proceeding); and Prevot v. 

Phillips Petroleum Co., 133 F.Supp.2d 937 (S.D. Tex. 2001). In In re Turner 

Bros., the court held an arbitration agreement to be procedurally unconscionable 

where the employees who presented the agreement did not understand it, the 

relator had no one to explain the document and did not understand it, and the 

claimant was functionally illiterate and had a reading disorder. 8 S.W.3d at 377. 

And in Prevot, the claimants testified that they could not read English and that the 

documents were not translated for them. 133 F.Supp.2d at 940. Further, they 

testified that their supervisors told them not to worry about the nature of the 

agreement and to quickly sign the document so they could get back to work. Id. 

Both of those decisions are distinguishable from the circumstances here. 

There is no evidence that AutoZone personnel did not understand the agreement or 

that Flores asked any questions or sought an explanation of the agreement. Rather, 

the evidence is precisely the opposite. (CR 172-202) Though AutoZone explained 

that it had no reason to know that Flores could not read English – personnel had 

conversations with Flores in English, and Flores routinely furnished completed 
36

company documents in English – Spanish materials were available to Flores in the 

event he had asked. (CR 172-78, 192-202) However, Flores never sought a 

Spanish translation or any other assistance with the plan document, though both 

were readily available. (CR 175-78) AutoZone provided a notice in Spanish on 

the face of the benefit summary and also made available the contract documents in 

Spanish. (CR 101, 172-78) Flores not only signed the acknowledgement form in 

2005, but he also acknowledged that he had read and understood the plan 

documents again in 2011 and 2012 – this time through a computer system that 

provided a Spanish translation of all relevant documents by merely clicking a 

button to make a Spanish-language selection. (CR 174-75, 180, 182, 187-91) 

In any event, this Court has rejected the holding in In re Turner Bros.

because “it is in direct conflict with [the Court’s] holding in Vera that illiteracy is 

not a defense to contract formation.” In re Ledet, 2004 WL 2945699, at *6. And, 

of course, neither a decision from the Texarkana Court of Appeals nor from a 

federal district court binds this Court. See, e.g., Penrol Drilling Corp. v. Williams, 

868 S.W.2d 294, 296 (Tex. 1993) (“While Texas courts may certainly draw upon 

the precedents of the Fifth Circuit, or any other federal or state court, in 

determining the appropriate federal rule of decision, they are obligated to follow 

only higher Texas courts and the United States Supreme Court.”) (emphasis in 

original). 
37

Moreover, under the doctrine of horizontal stare decisis, the Court’s prior 

holdings in Vera and In re Ledet govern and control the outcome here. Under the 

doctrine, a panel of this Court is bound by a prior holding of another panel of this 

Court absent an intervening, on point, and contrary holding from a higher court or 

this Court sitting en banc. Glassman v. Goodfriend, 347 S.W.3d 772, 781 (Tex. 

App. – Houston [14th Dist. 2011, pet. denied) (en banc); see also Medina v. Tate, 

438 S.W.3d 583, 588 (Tex. App. – Houston [1st Dist.] 2013, no pet.) (same); 

MobileVision Imaging Servs., L.L.C. v. LifeCare Hosps. of N. Tex., L.P., 260 

S.W.3d 561, 566 (Tex. App. – Dallas 2008, no pet.) (same). Stare decisis

emanates from a desire for predictability in the law, which allows people to 

rationally order their conduct and affairs. Grapevine Excavation, Inc. v. Maryland 

Lloyds, 35 S.W.3d 1, 5 (Tex. 2000). No intervening decision of either the Supreme 

Court of the United States, the Supreme Court of Texas, or this Court en banc has 

held contrary to the Court’s holdings in Vera or In re Ledet. Rather, decisions 

made by the Supreme Court of Texas are in accord. As such, those decisions 

govern here and require a reversal of the trial court’s order. 

And, in a more reasoned and persuasive federal decision, the court in Estate 

of Benitez held that the plaintiffs did not demonstrate unconscionability. 2013 WL 

4223875, at *4. The court turned to the mountain of Texas precedent rejecting 

illiteracy as a defense to contract. Id. The court also addressed those decisions 
38

that have found procedural unconscionability based, in part, on English illiteracy – 

noting that they all involved other facts indicating that the signatory was denied an 

opportunity to review and understand the agreement, beyond simply being unable 

to read English. Id. This included instances not present here: (1) the employer 

knew the employee did not speak English, explained some of the agreement in 

Spanish, but did not translate the arbitration provision; (2) no one was available to 

explain the agreement to the employee, including the representative who gave him 

the agreement and did not himself understand it; and (3) the employees were told 

not to worry about the contents of the agreement and to hurry up and sign it so that 

they could get back to work. Id. By contrast, the evidence before the Benitez court 

showed that the plan was available in both English and Spanish – just as here. Id.

at *5. Following Vera, Ledet, Tamez, and Benitez, the Court should reject the 

claimed defense of procedural unconscionability and compel Flores to resolve his 

claims by arbitration. 

PRAYER 

 WHEREFORE, PREMISES CONSIDERED, Appellants AutoZone, Inc. and 

AutoZoners, L.L.C. respectfully request that this Court reverse the trial court’s 

order denying their Motion to Compel Arbitration, that the Court render judgment 

enforcing the parties’ arbitration agreement by compelling arbitration and staying 
39

the trial court’s proceedings pending arbitration, and that the Court grant 

Appellants such other and further relief to which they are entitled. 

Respectfully submitted, 

BRETT REYNOLDS & ASSOCIATES, P.C.

Brett T. Reynolds

State Bar No. 16795500

btreynolds@btrlaw.com

P. Brook Swilley

State Bar No. 24041997

pbswilley@btrlaw.com

1250 N.E. Loop 410, Suite 420

San Antonio, Texas 78209

(210) 805-9799

(210) 805-9654 (telecopier)

THE LAW OFFICE OF 

JACQUELINE M. STROH, P.C.

Jacqueline M. Stroh

State Bar No. 00791747

jackie@strohappellate.com

10101 Reunion Place, Suite 600

San Antonio, Texas 78216

(210) 477-7416

(210) 477-7466 (telecopier)

By: /s/ Jacqueline M. Stroh 

Jacqueline M. Stroh 

ATTORNEYS FOR APPELLANTS 

AUTOZONE, INC. AND AUTOZONERS, L.L.C. 

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION 

 Pursuant to Texas Rule of Appellate Procedure 9.4(i), the undersigned 

certifies that this brief complies with the type-volume limitations; that, exclusive of 

the exempted portions, the brief contains 9,708 words (counting all appropriate 

footnotes); and that the brief has been prepared in proportionally-spaced typeface 

using Times New Roman Font 14 in body text and Font 12 in footnotes. 

 /s/ Jacqueline M. Stroh 

 Jacqueline M. Stroh 
40

CERTIFICATE OF SERVICE 

I certify that a true copy of the foregoing Brief of Appellants was on the 

23rd day of June, 2015, served by in accordance with the Texas Rules of Appellate 

Procedure on the following counsel of record: 

Jaime M. Lynn 

jlynn@carlsonattorneys.com 

Kiara Martinez 

kmartinez@carlsonattorneys.com 

THE CARLSON LAW FIRM, P.C. 

11606 North Interstate Highway 35 

Austin, Texas 78753 

-and400 West Jasper Road

Killeen, Texas 76542 

Attorneys for Plaintiff

 /s/ Jacqueline M. Stroh 

 Jacqueline M. Stroh 
CAUSE NO. DC-15-6 

MARIO FLORES, § 

Plaintiff § 

§ 

§ 

vs. § 

§ 

AUTOZONE, INC. AND AUTOZONERS § 

L.L.C. D/B/AAUTOZONE#3115, § 

Defendants § 

ORDER 

IN THE DISTRICT COURT 

229m JUDICW.. DISTRICT 

STARR COUNI'Y, TEXAS 

On this day, crune to be heard "Defendants' Motion to Compel/Enforce Arbitration." 

After considering Defendants' Motion, Plaintiff's Response, the evidence introduced, and 

arguments by counsel, the Court hereby DENIES Defendants' Motion to Compel/Enforce 

Arbitration in its entirety. 

SIGNED this 21 day of _ _,_A_,_p+-'-r·1_\'---' 2015. 

~~~ 
§ 1. “Maritime transactions” and “commerce” defined; exceptions to 

operation of title

“Maritime transactions”, as herein defined, means charter parties, bills of lading of 

water carriers, agreements relating to wharfage, supplies furnished vessels or 

repairs to vessels, collisions, or any other matters in foreign commerce which, if 

the subject of controversy, would be embraced within admiralty jurisdiction; 

“commerce”, as herein defined, means commerce among the several States or with 

foreign nations, or in any Territory of the United States or in the District of 

Columbia, or between any such Territory and another, or between any such 

Territory and any State or foreign nation, or between the District of Columbia and 

any State or Territory or foreign nation, but nothing herein contained shall apply to 

contracts of employment of seamen, railroad employees, or any other class of 

workers engaged in foreign or interstate commerce. 

§ 2. Validity, irrevocability, and enforcement of agreements to arbitrate

A written provision in any maritime transaction or a contract evidencing a 

transaction involving commerce to settle by arbitration a controversy thereafter 

arising out of such contract or transaction, or the refusal to perform the whole or 

any part thereof, or an agreement in writing to submit to arbitration an existing 

controversy arising out of such a contract, transaction, or refusal, shall be valid, 

irrevocable, and enforceable, save upon such grounds as exist at law or in equity 

for the revocation of any contract. 

§ 3. Stay of proceedings where issue therein referable to arbitration

If any suit or proceeding be brought in any of the courts of the United States upon 

any issue referable to arbitration under an agreement in writing for such arbitration, 

the court in which such suit is pending, upon being satisfied that the issue involved 

in such suit or proceeding is referable to arbitration under such an agreement, shall 

on application of one of the parties stay the trial of the action until such arbitration 

has been had in accordance with the terms of the agreement, providing the 

applicant for the stay is not in default in proceeding with such arbitration. 
§ 4. Failure to arbitrate under agreement; petition to United States court 

having jurisdiction for order to compel arbitration; notice and service 

thereof; hearing and determination

A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate 

under a written agreement for arbitration may petition any United States district 

court which, save for such agreement, would have jurisdiction under Title 28, in a 

civil action or in admiralty of the subject matter of a suit arising out of the 

controversy between the parties, for an order directing that such arbitration proceed 

in the manner provided for in such agreement. Five days' notice in writing of such 

application shall be served upon the party in default. Service thereof shall be made 

in the manner provided by the Federal Rules of Civil Procedure. The court shall 

hear the parties, and upon being satisfied that the making of the agreement for 

arbitration or the failure to comply therewith is not in issue, the court shall make an 

order directing the parties to proceed to arbitration in accordance with the terms of 

the agreement. The hearing and proceedings, under such agreement, shall be within 

the district in which the petition for an order directing such arbitration is filed. If 

the making of the arbitration agreement or the failure, neglect, or refusal to 

perform the same be in issue, the court shall proceed summarily to the trial thereof. 

If no jury trial be demanded by the party alleged to be in default, or if the matter in 

dispute is within admiralty jurisdiction, the court shall hear and determine such 

issue. Where such an issue is raised, the party alleged to be in default may, except 

in cases of admiralty, on or before the return day of the notice of application, 

demand a jury trial of such issue, and upon such demand the court shall make an 

order referring the issue or issues to a jury in the manner provided by the Federal 

Rules of Civil Procedure, or may specially call a jury for that purpose. If the jury 

find that no agreement in writing for arbitration was made or that there is no 

default in proceeding thereunder, the proceeding shall be dismissed. If the jury find 

that an agreement for arbitration was made in writing and that there is a default in 

proceeding thereunder, the court shall make an order summarily directing the 

parties to proceed with the arbitration in accordance with the terms thereof. 

§ 5. Appointment of arbitrators or umpire

If in the agreement provision be made for a method of naming or appointing an 

arbitrator or arbitrators or an umpire, such method shall be followed; but if no 

method be provided therein, or if a method be provided and any party thereto shall 

fail to avail himself of such method, or if for any other reason there shall be a lapse 

in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then 
upon the application of either party to the controversy the court shall designate and 

appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act 

under the said agreement with the same force and effect as if he or they had been 

specifically named therein; and unless otherwise provided in the agreement the 

arbitration shall be by a single arbitrator. 

§ 6. Application heard as motion

Any application to the court hereunder shall be made and heard in the manner 

provided by law for the making and hearing of motions, except as otherwise herein 

expressly provided. 

§ 7. Witnesses before arbitrators; fees; compelling attendance

The arbitrators selected either as prescribed in this title or otherwise, or a majority 

of them, may summon in writing any person to attend before them or any of them 

as a witness and in a proper case to bring with him or them any book, record, 

document, or paper which may be deemed material as evidence in the case. The 

fees for such attendance shall be the same as the fees of witnesses before masters 

of the United States courts. Said summons shall issue in the name of the arbitrator 

or arbitrators, or a majority of them, and shall be signed by the arbitrators, or a 

majority of them, and shall be directed to the said person and shall be served in the 

same manner as subpoenas to appear and testify before the court; if any person or 

persons so summoned to testify shall refuse or neglect to obey said summons, upon 

petition the United States district court for the district in which such arbitrators, or 

a majority of them, are sitting may compel the attendance of such person or 

persons before said arbitrator or arbitrators, or punish said person or persons for 

contempt in the same manner provided by law for securing the attendance of 

witnesses or their punishment for neglect or refusal to attend in the courts of the 

United States. 

§ 8. Proceedings begun by libel in admiralty and seizure of vessel or property

If the basis of jurisdiction be a cause of action otherwise justiciable in admiralty, 

then, notwithstanding anything herein to the contrary, the party claiming to be 

aggrieved may begin his proceeding hereunder by libel and seizure of the vessel or 

other property of the other party according to the usual course of admiralty 

proceedings, and the court shall then have jurisdiction to direct the parties to 
proceed with the arbitration and shall retain jurisdiction to enter its decree upon the 

award.

§ 9. Award of arbitrators; confirmation; jurisdiction; procedure

If the parties in their agreement have agreed that a judgment of the court shall be 

entered upon the award made pursuant to the arbitration, and shall specify the 

court, then at any time within one year after the award is made any party to the 

arbitration may apply to the court so specified for an order confirming the award, 

and thereupon the court must grant such an order unless the award is vacated, 

modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is 

specified in the agreement of the parties, then such application may be made to the 

United States court in and for the district within which such award was made. 

Notice of the application shall be served upon the adverse party, and thereupon the 

court shall have jurisdiction of such party as though he had appeared generally in 

the proceeding. If the adverse party is a resident of the district within which the 

award was made, such service shall be made upon the adverse party or his attorney 

as prescribed by law for service of notice of motion in an action in the same court. 

If the adverse party shall be a nonresident, then the notice of the application shall 

be served by the marshal of any district within which the adverse party may be 

found in like manner as other process of the court. 

§ 10. Same; vacation; grounds; rehearing

(a) In any of the following cases the United States court in and for the district 

wherein the award was made may make an order vacating the award upon the 

application of any party to the arbitration--

(1) where the award was procured by corruption, fraud, or undue means; 

(2) where there was evident partiality or corruption in the arbitrators, or either of 

them; 

(3) where the arbitrators were guilty of misconduct in refusing to postpone the 

hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and 

material to the controversy; or of any other misbehavior by which the rights of any 

party have been prejudiced; or 
(4) where the arbitrators exceeded their powers, or so imperfectly executed them 

that a mutual, final, and definite award upon the subject matter submitted was not 

made. 

(b) If an award is vacated and the time within which the agreement required the 

award to be made has not expired, the court may, in its discretion, direct a 

rehearing by the arbitrators. 

(c) The United States district court for the district wherein an award was made that 

was issued pursuant to section 580 of title 5 may make an order vacating the award 

upon the application of a person, other than a party to the arbitration, who is 

adversely affected or aggrieved by the award, if the use of arbitration or the award 

is clearly inconsistent with the factors set forth in section 572 of title 5. 

§ 11. Same; modification or correction; grounds; order

In either of the following cases the United States court in and for the district 

wherein the award was made may make an order modifying or correcting the 

award upon the application of any party to the arbitration--

(a) Where there was an evident material miscalculation of figures or an evident 

material mistake in the description of any person, thing, or property referred to in 

the award. 

(b) Where the arbitrators have awarded upon a matter not submitted to them, 

unless it is a matter not affecting the merits of the decision upon the matter 

submitted. 

(c) Where the award is imperfect in matter of form not affecting the merits of the 

controversy. 

The order may modify and correct the award, so as to effect the intent thereof and 

promote justice between the parties. 

§ 12. Notice of motions to vacate or modify; service; stay of proceedings

Notice of a motion to vacate, modify, or correct an award must be served upon the 

adverse party or his attorney within three months after the award is filed or 
delivered. If the adverse party is a resident of the district within which the award 

was made, such service shall be made upon the adverse party or his attorney as 

prescribed by law for service of notice of motion in an action in the same court. If 

the adverse party shall be a nonresident then the notice of the application shall be 

served by the marshal of any district within which the adverse party may be found 

in like manner as other process of the court. For the purposes of the motion any 

judge who might make an order to stay the proceedings in an action brought in the 

same court may make an order, to be served with the notice of motion, staying the 

proceedings of the adverse party to enforce the award. 

§ 13. Papers filed with order on motions; judgment; docketing; force and 

effect; enforcement

The party moving for an order confirming, modifying, or correcting an award shall, 

at the time such order is filed with the clerk for the entry of judgment thereon, also 

file the following papers with the clerk: 

(a) The agreement; the selection or appointment, if any, of an additional arbitrator 

or umpire; and each written extension of the time, if any, within which to make the 

award. 

(b) The award. 

(c) Each notice, affidavit, or other paper used upon an application to confirm, 

modify, or correct the award, and a copy of each order of the court upon such an 

application. 

The judgment shall be docketed as if it was rendered in an action. 

The judgment so entered shall have the same force and effect, in all respects, as, 

and be subject to all the provisions of law relating to, a judgment in an action; and 

it may be enforced as if it had been rendered in an action in the court in which it is 

entered. 

§ 14. Contracts not affected

This title shall not apply to contracts made prior to January 1, 1926. 
§ 15. Inapplicability of the Act of State doctrine

Enforcement of arbitral agreements, confirmation of arbitral awards, and execution 

upon judgments based on orders confirming such awards shall not be refused on 

the basis of the Act of State doctrine. 

§ 16. Appeals

(a) An appeal may be taken from--

(1) an order-- 

(A) refusing a stay of any action under section 3 of this title, 

(B) denying a petition under section 4 of this title to order arbitration to proceed, 

(C) denying an application under section 206 of this title to compel arbitration, 

(D) confirming or denying confirmation of an award or partial award, or 

(E) modifying, correcting, or vacating an award; 

(2) an interlocutory order granting, continuing, or modifying an injunction against 

an arbitration that is subject to this title; or 

(3) a final decision with respect to an arbitration that is subject to this title. 

(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not 

be taken from an interlocutory order--

(1) granting a stay of any action under section 3of this title; 

(2) directing arbitration to proceed under section 4 of this title; 

(3) compelling arbitration under section 206 of this title; or 

(4) refusing to enjoin an arbitration that is subject to this title. 
Filed: 3112/2015 3:21 :49 PM 

Eloy A. Garcia, District Clerk 

Starr County. Texas 

Brendaly Guerrero 

AU,TOZQ.NE TEXAS. OCC.UPATION:AL 

l:NJURY .BE.NEF'fT PLA:N 

Effective August ·1, ·2005 

{Revis,ed as of AprH 1, 200.8) 

SU.MMARY PLAN DES·CRIPTION 

NOTICE TO ~GUSH sPaAKIN~ AVTO~ONERSe. Tbfs b()()klet aantains a S\:lmmJlry : 

in English of your plan rights and ~efitJ; u~er ~be AZTEX A(lv~nt~ge: AutoZcme 

Texas Occupationar lnJu.y. Benefit Pl~n. tf ·you have difficulty understahdfng af)y 

part of this b'QOklet, con~ct is l< Manager at 123 s. Front Stree~ Memphis, TN 

381 f)3, (~01} ~5..6.$0.. Office hours are: frP.m -a;QO a.rn. to '-:OO ·p.ro., l\lt(tnd~V. lhrQugh Frld,_l~ . 

AVISO A LOS E_MPLJ:ADOS QUE NQ HABLAN 1P.ES;. E,s.te· :fQtkttP ~~U.ne lilO' 

resumen .en ln·gles de los derechos y beneficios d~· so plan bajo el. Pl~ de. Lesl~nes 

AZTEX Advanta99: :AutoZone Texas Ocupaclonakfs injury eeneflt Plan For ~uas 

/\1"fo.Zofl~~\ $1 tl~ne ·ditscultad .e:n .Qnt.-d•r .cu.,lqUltlra par.ta de •s·te folleto, 

O.nfACf• ·:•· 8.f.llf M,1tn~g1u· '" ·-' '.1~3; $.. Front sfr~~t; l\n~mphiJ.r TN. 3&.~03, (901.) 495" 

6$.(JQ~ u.~, ~- dQ Ml.a"•· a~m: d.e'$.:tlJJ 11~m. o.o , Clt: lurees :• vl•tnea.. 
RES.OLUTJON 'OF CERTAIN .INJURY-RELATED DISPUTES 

AutoZ0n1,:1 =t:t.as. ~PPt~d a ma11d.ator.y ~--~Y req~dring th~• yo.μ $QITTPIY With the following, r.tJsput~ 

r:esolutiOn r~iternei1~$. · · · · 

Dispute Resplytig!l RsuJulrement· 

All' cfaim~ror df$pl)te.s dE)~r.lbed bt:11Qw thatt:ari:not otherM$& be resolV~d between Autozorre a~d 

~ ate subject .to th.e dlspμj~ fltSc;>ft.ttiP-r:•. program de.s.~ribed 1'1 this' Plan. T~r, pragram ts. 

the only method for resolving anv such claim or dispute. · · · 

Claims CbVered By This· Requirement 

Thi$ requ(reme,:nt,appUe$ to: 

)' any· leg$,{ :or eqμJtat>.te cli;lim .or dtsptJte r~l~'tlog to E!rtfor~m"l'1t pr IQt~rpre.~~tJ.011 :Of fhe. arbltr~tlon ptovls~~ps Jn an AZTEX Ad;y~n~~ A~knQwJeqgem~m Form .or this ~rJ.li~idicm 

te.q.ufi:em~rtf;: and 

)- ~ny letJ~f o.r equitable cla.irn: by or Wl'th re$.pect tQ yo):.ffor ao.yJorm Qf;ph~R::al !:>t psyohotO'gical 

pamai;ie. ~mi· or d~th wnh;h relaJas ·to an aee!Qent; o.c.ciipa:tipnal dlsease, or ·eumulatlve 

~~npa cl ~ding,, ·but not limited to, lalms of negHg nc~ or gross ·11egHgepce or 

discrimination.; and claims for ~ault, battery,, neg.Ii.gent l'iiti.n g/tr:ai)li11g/s1,1p ry.i5io,Yre Mtj!Jn, 

,emotional distr~s . retaliatory dischar.g~, :or vloJatlon of any other nonorimlti-al federal

1 state .or 

n~r g,avemmental pommon law,; ~tatute, agu ~tlo n or ordinance tn connection with .a Job~ 

related inju,-yi rega(dless of eth r the common w doctrine wa& .reco.gnlzed or wheijler tht;l 

st~ t~. reg·u1atlon or o~ina ce was en~cted before or after tne effective date of this booJd,et). 

This cl d~s .. all claims ltsted above that .you have now or in the future against AutoZOne, its 

officers, directors, owners. AutaZon rs. pres nt iv , egentsJ St,Jb$idiaiies, afti1iates, 

·successors, or as~igns-, This do.e.s· not, hpwev~r. Include any l~gaJ · or equitable ctalm under 

e:~JSA ~r ~en~~t$; fldll,pi~cy .b.rea.ch .• Qr o:the.r prpbl$!T1 or: rel!~f spl~IY. ref a.ling to b.e.ne~t$ ~~~lf:l. 

under this. 'Plan. 

Th~ d~termtnation of whether a c;taim is co.ver&d by these provisio.ns wi11 .alsO' b-e. .. subject to. 

m.ediijtfQn and ar.bitration qnd.er tht~ df$P.Ute'. ®Qlμtlb.n requ.tterri.eot. Neither· you: nor AulOZont 

will be enfilJed 'to. a bench or Jury trial on any claim covered by this dispute resolution 

requirement. ThiS dispute resolution requirement apptres. to vou without regard to whether 

ypu have .. compieted and sigped an AZT§( Advantage Ackpowltdaement Forinw Tfie=?e 

provrs1cms also appjy to :any clatms. that .may be brought by yt>Uf. ·Spotl!:fe'=, .children!. parents •. 

.beneficiaries, -repr:e&er.itativ.es·, executors~ administratots, guardians, heJrs or ass Q!1$. The 

di$pute resolution p.rovt~tbn.$ :o.f thfs Pla.n= wifl ~ the sof $ ami ~xcl:Clsf'J(:) :r.emedy for r.esolYing any 

such c!alm ~f: (ilispμt~; 

e,.cop~1 ~eami~So!llte. f(\t, 

~IQB 0080 
Mediation Prior to Arbitration 

If you h'ave: a claim or ~ispute, Y,o.o must first.seek reso.ttitih.n of the probTem thr6~.h rrtedlatlon: 

before y.o .. u request" arbitr.atfon. 

Required Notice of AIJ Claims 

M.~<lkltl~g:: Wh~n ·y(!JJJ ~~k .m'dJalion, :y.ou mU.e.t giy.~ wri.tten no.tlc~ to tne o~r party.. 'Yol.! 

mY~t $t:m.d wt'.tt.te.n riQtfee tQ AJ..rt9Z~me. lnc.i J~ care Qf LJtJg~l!on JVl~n.ag~r. ~ ~ a.P~ 1'.~a. 

Memphis;, TN ~to-1 .. 9a4~~ ft Aul¢Zone wishes to se~k :mediatjoft., ,A;ut9.ZP.ne. :wiu ·give. n¢tl~ tp 

y.o-u·at the last sddress: recorded ln. your peraonnel file. 

Arbltrat1on: If the issue Is not resolved through mediation, yotJ must request afblttatlon. 

·When you seek arbitration, you must give written notice: tit any cfalrn -to the :0ther party withfn ths 

app:lic[lb~ statute· 'of llm. t~tions, Tbe ~ey the acl :co.mpta.ined: of .oscurred wlll be ·®Urited ·tor. 

Pt.lfPQSA$;.Qf qetermirililg the ap.pllbabl~: perto<;J. [f-i;iudl r1ot1oe-i~' n.o• gjven, tt:ie claim sh~d} be void an~ deem~ w~c;i. ., . .· 

vuu must .send wntten notiee In triplicate :to the Ametrcan. Arbitration Associ'ation, Attention: R~~tonal Cla:hn.s APmlnt$trstor1 ar 1.3455 No~I Road, two Galleria 'Tower, Suite 1.:rsa, D.aiJaS:, 

T~x~, 7e24Q-B~20. Vqq m~st al~o $Snd w.rtu.e.n nPtice ·to ~utoZ.pne, in care -of .Liftgation 

Mjinager, A1;1to.Zon.e• inc , P~ O.i 11.ox: ~t98J: M~mphis, TN ~s101 .:9e42 . If. AutoZone wl$1:1~a, to: l~v¢.k~ $f'ijltr'atl0tt, It ·Will give ryotice to you t the last addr6Ss tecorded i(l y.our persoAnel 'filf). The. patty: $questing arbitration must· identify and describe the nature of all claims asserted and lbe 

facts .po whtch the olal..ms are based. This written notice shall be sent certified or regtsteract" maU, 

~1~ rec~fpfreque$tetl. 

,00$diatlon Procedures 

MaQ.i~tm un.aer this S~cfl'Q~ will ·qe h~ndfed by a med~tor appo.lnte.d 9y the A~ncci.n 

~fbf~tiOf:'l A.s~ci~tf9tr AAA' ) w~o ts sf(ilt~d iO handl~119 Otllifll_ct$.! ih§ g~I of ~Jatlon 1$ to 

deverop: a solution that sattsfles ooth ·patties· In a way tlUlt strengthens tl1e \VOrkfhg re!a.tton,"$filp, 

The, mediatot 'wilJ ttste:n ·to.. both side$ .and Will offer creative ·so1utions 'to the jltob1£ifYt :If the 

parties nannpf a_gres 1o a, aof Utlo:n thr.pugh a mediator •. eltbe.r par-ty may. requ.eal atbifratk:m •. 

Arbitratton Procedures. 

Any· ~ijratiP11 under tf:li~ a{bftratlon requl~ment wlll be ad.i:ninislered by ·the American AmitraHon 

As~J~tJp.ri .rA:AA".}· under ~ t~n-:eurrent EmploymeAt Arbl~atlon RLiles and Mediation 

Proceoums.. U'nles.s: oth~rWlse agreed to in: writing by the partie~ •. the arbitrator selected by. the 

p.artle.s. In ,accordance with tho.-se rules {1 ):shall be an attomey ioe.naed "to praetlee in the State· of 

TeX:as,Wfth .axperience· ln· personal. h'.)}w:y llt,gatJcm, and ~) shall be selected from ii i:»ahel 0t 

arbnra.tors located in Dal.las Qounly#. Texas. 'rf the arbitrator so selected becomes unabl~ ·t.o:s.erve 

for -any .re~spn. th@ p~cties shal.1 again gp tn.ro1;mt'I tile same sel~t;.tion, pFQCe§S,. The :arQltfatqrwiU 

ap13ry. .tfJe ~bstantfve raw {and the laws of remeples) .of Texas {other ~an the Te?<a$ Gen.~raJ 

Arbitration Act). or rederal law, or both, dependih9 upoit the claims asserted. The arbltmt0r will 

provide, btlef fl·ndings of-fact and conclusie.ns of law. The· flnal. deqisJOn ar:id the arblt(atlon· awardi 

If any" shall be made· aqnslsMnt Wl~h r:em$dle$ a~aUable under Texas: $l~tute and: c.tnle law. All 

Cl~2DD.6/'MOllf!~ iqc. 

~,411i'll8 

0081 
cf99i£tkm.$ rendered by an ~rbftr(itpr ~nge.r thl~ ~rt:Jttr:a~ . ~qul.t~ment Wi~· l;l~ ~ept connden,~ ~y 

al.I paijfe$, an¢ Yiil.I ~o~ :eeive '!3S ~lnf:flf.'.lgt leg~I. t>'(f)~ enJ WjtJj ·f1J.spe.ci to subseqμent :Ctatnts ot dfsp\.lf~ brought unqe.r1hls arbltratiOn requirement. 

Payment of Fees alld.Expenses 

». ·Medietion: The: AAA liUng· f~ for me(flatlt>n wilf b:e ~t .l~a3t ·$3Z.S. Yo qr $hare c:>f thf~. OQ~t· ~ 

$5().. Your EmpJoye.r wm pay. the, re.m~Jr:td~r of tbe MA fHing f~e. Y()ur Emlll!~:Yer wUl' ~l~o 

pay. tt}e. Oieaiat~ir~ ·antlft:J f$e ~a i:Jir.tY:O.\~$f AAA adrnif:'li&tratiw exp:etises~ 

»· Ar.bitration: Vou ~hall pay a nonref~mdable aif>ltfatlon filing fee equal to the· standard 

employee filing fas specified under then-current AAA Employment Arbitration Rules and 

Medlatio.n Procedures. Your filing fee- .must be paid when you submit a. request for arbitration 

{or~ Jf this process is hallenge<l by }.'OU, ·when arbitration Is compelled by oourt o.rd~r), . 

.Autozon~ shall" pa~ .fil n~mr.efun.dable ar1:1.itr:atjon fl.linQ ffie f:lqual to the stanqard ~mp!Qy~r filing 

fee specified u,nder then-rurrent AM Employment Art>itratien Rufes ·c;\nd Meaiation 

Proeed\Jres. Aute.Zone wlU also pay the arbitrators entire ·fee and any other AAA 

-adm(nistrative expenses: pro.v1ded, bowever that you may elect to aJso pay .up to one~hatf of 

these fees and expenses. 

• rnhe.·arbttrator ffrrt:fa;,cqm.p(efely. ln your f~V9.f on ajl daj.ms«: Aμt()ZQl',l(i! wj)J :re lrrtb~~~ you for yol}r sh~re of t.h,e· filing fe . · · 

• If Aut6Zone requests= amitratio11 (by means other 'than a motiO.n In court 10 :com~ 

arbitration), you Wiii pay nQ JlQrtion o.fthe·AAAor arbitrator fees. 

·• Eithe,r, partym$¥ arr~ng~ for anq, ~Y ~ cofit·of ~ co.urt report~ t('j pr.o.Vfde. fitl. ~tepog~phlc 

tecQrd:Qf the pr-Oqeedings~ 

•. Each party wJl,l also be respon.sibl~ for t:h~ir own attorney's. fee$., Jf any; How~v~r. if any: 

party prevails on a. statutory ql~ im whtch allows the preyaj~f'.19 p~(ty to be a.warde9 

~ttorn~y·s fee~>,; . or If there ts a writt~n agreem~nt provi~iht1 for s.Uch ~s. the rb.l~t~r ~ 

~~td .re$&ot$t;>Je attPfTIE!Y.s fee.s uxt.he·prevalllng party; 

•. Ndiwftnstandlng the above pm:v'tslons; the ar:Prtrato:r lMll 3$$~&$ the AAA fi1ing fee, al'P.ltrator 

fees and ~~Sn$~s, ·and,.attQmeys fee~ ~ainst a· party μpon lit• sho~ bV the oth~r party 

1haf the first party's els.Im ·is. friv.ci~ou~ or unreasonabl~. or f~~\la!IY, or Jegally groun~l~s~; 

anc.:i 

:> If either !party pursues a claim c.ov.ere.d by this· dispute resolution re.qt1lremettt ~V any. me.ans 

d tier'fhan the dl~pUt$. re.solutfon"pt.ov.istbns of thls ·pJan. the· ~.espo.ndlng· partywur be: ent1tled to: 'distntssal -of suett actkm. · · · · 

1ntel§!ate eommerce· 

.At.rteZooo' le engaged fr1. transactions lhvolv.lng interstate ,commerce {for example> .Pt1rchaslng ·goods, and services from outslde texas whrc.h a(e !$hippe.d ·to Te.xa$ ~nd providing goods ,and. 

se.ooaes to custom~; ftcm1. other ~tates:) and your employment lnvolv~s s~ch commeroe. The .. 

0082 

39: 
Federal Art>ttratfon Act will gev~m .tfie irjterpre~tlon, enfarc~t.nen~ ~n~ proceec:lio~ 4n~er thfs 

a·rbittaffon reqμiremef.lt. Unless. cotitrary to :appUeabfe law, any lawsuits seekl'1Q 10: enroros or 

vacate ·ah a~ration award .shall be bt()tlghi in. the. :United States. i:>Istrtct Court for the-- Northetn 

Dlst'rtQt Qf Texas, O~Uas DMsipn. 

81!Jding Effect 

ThJfl §i:l;>ttra~lory r~qufreme.nt1Pr r~fiQMhg d~!ms by ~n~r ~n<f bjMqJng:.eir.bJtriation is Ql.lafly b.itldinQ 

W'.t.On, ~n~ ?~P.li~ ~ any -suc:;h (:Q~efe.9 ~ims th.a~ m~y · bnwght: ~y ' .AtrtoZ9ne w;\d ~l Plan~ 

participants, including you and your ·spouse, children, parents1 beneij,::iarle8, r~pri:fsen~~v&S, 

executors. administrators, guardians, heirs· er assigns. This. binding arb1tratlon Will tie the sblEfand excl usiv~ remedy for resolv ~ any sucih ola1m er dispute. This arbit(-ation ~guirementappliss 

to· aJI Plan participants without regard to whether thev have completed and sign&d an 

AZJEX ~d!antage .Ackno:tfledgement Form. .Ade·quate aonsideration for thls rnitratlon 

·req.ulre.rnent Is represented b.Y1 among offier tnings, your a.lfgibJlity·for nd ·riot neqe:s~~-r!ly any 

receipt of) benefits under this Plan and th~ fact that it is 1ru.Jtual.ly 'bio(;jJng qn .both Aut9Z ri~· ~nd 

yoa. Any acfual payment of benefits under this Plan to or with respect to you will serv.e as,further 

nslderatlon for' an.d repr~sent . your further agreement to the. ptovJsJohs· of this arbitration 

requirement. This arbitration requtr.eme.nt wlJI remain in effe.at with respect to AutoZone and you. 

even ff you. refuse ~nefits under tf)ls Plan, you return Plan benefit payments to AutoZone~ you 

becom19 ineligible for benefits or benefits ce,as~ under this Plan jn accor9ance with its teJ"!'.Tls., or 

your employment with AutoZone 1s ~luntarlly or involuntarily terminated. Ttus arbitratioi1 

pr.o.visi.on is ti'ot subject to ERiSA requirements .Or otherw.is.e dependent upon the benefit 

p(ovlsiQns of lhi'&. Pf.an In any way; ancJ Is fm h,rded .In tf:lls. bpoktet strictly a~ a ma.tter of 

~<i>nvenf~n~~'- ~P ~ocumentatlpn,. Thi$· Plian ar.ld arb.ltratl<:ln ·requirernent c;i lsp ifl nq ·way ph~nges 

t~e "at ~Ill''- empl yrnen~ sta!tJs of y partlo\pant no! covered ·by a cqllectlve bargalr;i_ing 

.agreement. 

AMEN.D:ME.NT OR.TERMINATION OF PLAN 

,A~~o.o · p~ntty f ri(~nd$ to contto~ lbe Plan in~efiplt~ly, bQt reserve~ \he righf ·tQ am~ncl. 

~~lfyi 9.f t~rfr:lin~~ ti\~ f>l~n ·at_ ~f1Y tim~; proyi"~d .. hQY{e~I\ ij'tat flQ: t>.U~h awenqm.e(lt or 

termination wili after the arbitr.atlan proVl~lo.ns-. of ·the Plan With respectto., ()f': tedue$ the. amount Of' 

any b:aneflt pa~ble io. .or·with re.spectto you ond1~r the Plan ·1n rot1nediorfWith, an lhJury-ooootring. 

prior t~ . the. d.at~ ·of ,suc;h am~ndm,ent or t~mirnatlon.. Jn ad.dftfon. ,any such ame.hdniEITTt ot 

termfnat!o.n of tbe arblt~t1QnJ>fQVh~iQns oflfte, Ptan sball not be ffectlv~ untif. at'least 14 d!iys.-a.fb~r· 

wrt1t~ Ojl)~Ge ha$-be~o Pl!O~aed tq. yo ~ .Any. $1.{qf\ ..ammid.rnen\ o.r terr:ntna.~qn Will be afl.Qp~ed 

pursuant ~o form~ written actiqn ofa ~pre$entative a~~o(tzeq ~ act Q_n beh~ff ~f AutqZor:ie .. 

Q:EFtNfTIONS 

Thts Etedion, de.fines ... specific::· temia use~:f in this b.ooktet the$$ .de.flnltk>ns sh.o.·ulo not be, 

lnterprete;d tp e>dend coverage unless :specfflcally provided fi.>r. in:th&«»fher. Se!::tlon>a Of this :bOOkJ~· 

an.g thta P(~ QQP111.TI!ml 

IC)~ 200&.P8,11eettlollico; 1r:1c. 

ReY.<t'-t/08 

40, 

0083 
Filed: 3112/2015 3:21:49 PM 

Eloy A. Garcia, Distret Clerk 

Starr County, Texas 

Brendaly Guerrero 

..Autol.oner i.:hoo1d @ttlin 1st cb?>Y 

-Mail 2lll CQJiyrtn SSC 

-Send 3rd copy·to 1bc Rcaionu~l'UU1f~Tl!!&¢r· 

T~$AoVANTAGE A'(:f<t'QW)..J:oGi:;Mf;Nr FORM . 

RECEIPIOF MAigRlAL.S. ay my.,Signatur~ below. I aq~ow1edge t r l)a'Je t.eGelved-and ~~ (orhad· ttfe r,ippQl"Wnify lo .read) tf'ie Somriiary Plan DesqriP,tlQ'ri (the;1'SP09

) ¥Jr~ AZTEX Advantage: 

AutoZone Texas OOOupation~l lnJury Benefit PJar'l, effeCUv.eAugust 1, 2005. 

JN'Ju'BV NOTICE Af!O MEQICAL PROVIDER~ I. un~eaifand md agJlie that-:ff t am Injured on ti)~ 

pp,;_-1· ':l'\Ji:i~ n9ti(y mt Manager ~ 13l,lfy' VJ~io ;24: ho).Jffi -of ttla tl,me of J!i~ .injvry t:tn.d receive any rrie<Ji~I ®re. from a· Plan approv(3~f p~y~ioian In order to i:ec,e.lile ~eneiifS und~tilie PIB.n. 

@fiETY PLEDGE~ I agree to famlll~e myself with the safety prog~~ ·tor the· Co~ ny a11d to. 

petform my jpQ acwrdi.ng'to ttle general end dep.ar.UnentaL a~ Nl&s of the COfrlp~ny. I wtll also ~~any p~Riorull protect1Ve .equlpm~n1 tha.t ls proylde:d lo me •. I ~so agree to. lmmedlately· report 

~ my f;nanagef o,n ggty :ariy e~o\clent tt"~t l!)yatve~ ~nptl:l r uto~one~ . a cUstQmer, ~ vendor; or 

h\e, l wjll' 'i'.l$Q. ltnm~'dlqtelt rep.ort ~n~· μn~~re ~c~ RC!{lqlti~n O'f eq~!Pl'l'Pmt~ .I· Wl}/ ~J~O. QPOJ"i:ata· 

Wltti ~t1Y. aoc.ldeti.t'lrtV.estrgetibns> 1and aptf~e{f par.tl9lpat~, In· e!'}Y ~mp~ny ~ety irsl?lrtg programs. 

ARBIT'RATIOU. .1 also ael<noWledOe that Ibis SPD .lncl.udes. a rrianda1ory .company pollcy reqtllJiog 

U,at oer:tafr'I c;l"lms or di~pute& n!lating ·tQ an on-tile-job· rnjury (that· cal')not otherwl~ be 

r&SOlved between t~:e Comp,ny ·and me). must be Q1'~ltt~· tQ an arbitrator, ~~r than a 

)u.dgi ~rr~ Jur-y lo court I ·uhderst)!Qd _that by· ~oetving. this SPD· ~nd be(:(:Jming ~m1,)lo~ed. (pr 

oot(11J1 ~l"~' hly emetoxm~nt), With the ptinipa:ny ~ .. ~~X )ii)ie oYI er. after August 1.i 0~~· . ' am 

acel:lptlng and ~gr~eu;ig t(J· .c;Omply .with ttlese" a(bJtratJon ~~!r:ernents~ I l!J1dersl~hd tfuif the 

CQn;ipa{'ly ia ~l~o ,itlccep.ting aAd agreeing to rompJy With these arQltfa~on raquJremenls~ An 

ccw~r · claims brbilght ~Y. my sp:ouse, chll'dten. beneflciarles, r~pr~sentatives , ~eQJ~P~. 

adinlr!fsfnllo~, guardians. helrs cir .assigns are also. subjeat. fo, th& Campaots ~rbltratlon policy, a~ :;:111y dects[on .of an lirbltmtor will be final and blhdlng on-such p_ersQ.rnran:<1 the· c;Qmpsny~ . .. 

x ~., . . .. . . ' . ;c.:_-,-

AQ0i s\i\~ I , -Date 

-

\. 

AuW.:Z<:!~r's· Store Number 

·Dale 

0140