COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

CASA FORD, INC.

,
Appellant,

v.

JOHN L. WARNER

,
Appellee. §

§

§

§

§ No. 08

- 20

- 000 89

- C V

Appeal from the

327 th Judicial District Court

of El Paso County, T exas

( TC #2019- DCV -4643)

SUBSTITUTED OPINION

Appellee’s Motion for Rehearing is hereby denied. The opinion issued on August 23,

2021 is withdrawn, and the following is the substituted opinion of this Court.

Arguing that the arbitration agreement at issue is valid and Appellee’s (the

“Employee”) age discrimination claim falls within the agreement, Appellant Casa Ford, Inc.

(the “Company ”) appeals the trial court’s order denying its motion to stay proceedings and

compel arbitration. We reverse the trial court’s ruling, uphold the arbitration agreement,

strike the attorneys’ fees provisions, and remand to the trial court to enter an order consistent

with this opinion.

BACKGROUND

After decades on the job, the Employee agreed to the Company’s Federal

Arbitration Act

- based arbitration policy (the “Agreement” or “Arbitration Agreement”) as

a condition of continued employment. When the Employee was terminated and filed an2 age discrimination claim, the Company filed a motion to compel arbitration. The Employee

disputed the validity of the Agreement before the trial court on the basis of substantive

unconscionability due to two provisions requiring Employee to pay his own attorneys’ fees.

Specifically, the Agreement states:

You and the Company will be re sponsible for the fees and costs of your own legal counsel, if any, and any other expenses and costs, such as costs, associated with witnesses or obtaining copies of hearing transcripts.

. . .

Representation by Counsel : Both you and the Company may be represented by counsel at arbitration at each parties’ own expense.

However, the Agreement also states the arbitrator “has the authority to award any

remedy that would have been available to you had you litigated the dispute in court under

applicable law. ”

The applicable law in this case pertains to an age discrimination claim under the

Texas Commission on Human Rights Act

— Texas Labor Code Chapter 21, wherein an

Employee may pursue attorneys’ fees. TEX.LAB.CODE ANN. § 21.259. Attorneys’ fees

should be awarded to the prevailing plaintiffs in civil rights cases to the degree necessary

to fairly compensate attorneys for the value of their work. See e.g. , Blanchard v. Bergeron

,

489 U.S. 87, 95

- 96 ( 1989)(supporting appropriate attorney compensation to encourage

successful civil rights litigation for the benefit of the aggrieved and society at large); Pitts

v. Dallas County Bail Bond Board , 23 S.W.3d 407, 419 (Tex.App

. — Amarillo 2000, pet.

denied)(op. on reh’g)(using U.S. Supreme Court guidance on section 1988 claims to

support attorney fees award to prevailing civil rights plaintiff absent special circumstances

for denial); Texas Education Agency v. Maxwell , 937 S.W.2d 621, 623 (Tex.App.

—

Eastland 1997, pet. denied)(supporting the award of attorneys’ fees when plaintiffs’3 constitutional rights were found to have been violated); Black v. Pan Am. Labs, L.L.C.

, No.

A

- 07

- cv

- 924

- ly, 2012 WL 12950044, at *2 (W.D. Tex. Feb. 15, 2012)(reinforcing that “ a

prevailing plaintiff in a civil

- rights action is presumptively entitled to reasonable attorney’s

fees, unless a showing of ‘special circumstances’ is made that would deem such an award

unjust ” in an employment discrimination case).

DISCUSSION

Issues

Appellant’s issues are whether the Arbitration Agreement provisions requiring each

party to pay its own attorney’s fees substantively unconscionable, and if so, are the provisions

severable from the Agreement? Did the trial court err in denying the company’s motion to

stay proceedings and compel arbitration?

Applicable Law

Arbitration agreements regarding disputes between employers and employees are

generally enforceable, and favored, if there is valid contract covering the employee’s claim

.
See In re Poly

–

America, L.P., 262 S.W.3d 337, 348 (Tex. 2008); In re Oakwood Mobile

Homes, Inc. , 987 S.W.2d 571, 573 (Tex. 1999)(per curiam). The Federal Arbitration Act

(the “FAA”) provides that a written agreement to arbitrate a controversy is valid and

enforceable except when equitable or legal grounds call for its revocation. 9 U.S.C.A. § 2;

In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 739 (Tex. 2005).

Once an employer establishes that an arbitration agreement covering an employee’s

claim exists, an employee opposing arbitration must show a defense to enforcing the

agreement. See In re Poly

–

America, L.P., 262 S.W.3d at 348. The defense at issue in the

present case is substantive unconsciona bility. Substantive unconscionability here addresses

fairness and public policy as reflected in the underlying claim’s statute and whether a4 complainant would be able to realize his statutory rights and remedies within the context

of arbitration. See e.g.

, In re Olshan Foundation Repair Co., LLC., 328 S.W.3d 883, 892

(Tex. 2010); In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010); Security

Service Federal Credit Union v. Sanders , 264 S.W.3d 292, 297

- 98 (Tex.App.

— San

Antonio 2008, no pet.)

.

The courts determine arbitration agreement validity according to standard contract

principles while favoring arbitration, rendering an agreement to arbitrate invalid only when

it contains substantively unconscionable material terms. See J.M. Davidson, Inc. v.

Webster, 128 S.W.3d 223, 227

- 28 (Tex. 2003); Wright v. Hernandez

, 469 S.W.3d 744, 756

(Tex.App

. — El Paso 2015, no pet.). If the substantively unconscionable provisions do not

constitute the agreement’s main purpose, courts may sever an illegal or an unenforceable

provision and enforce the remainder of the agreement. Hoover Slovacek L.L.P. v. Walton,

206 S.W.3d 557, 565 (Tex. 2006); Rogers v. Wolfson

, 763 S.W.2d 922, 925 (Tex.App.

—

Dallas 1989, writ denied).

Standard of Review

We review the trial court’s determination de novo, as the issue on appeal regards

the validity and enforceability of an arbitration agreement. See J. M. Davidson, Inc. , 128

S.W.3d at 227; In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009)(orig.

proceeding); ReadyOne Industries, Inc. v. Casillas , 487 S.W.3d 254, 258 (Tex.App.

— El

Paso 2015, no pet.); see generally TEX.CIV.PRAC.&REM.CODE ANN. § 51.016 (“In a

matter subject to the Federal Arbitration Act, 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 ” [Internal

citation omitted]).

Arbitration Agreement5 In the present case, the facts are undisputed. The Company met its initial burden to

show, and the Employee did not dispute, that an arbitration agreement exists and the

Employee’s age discrimination claim lies within its parameters.

Substantive Unconscionability

After showing an existing arbitration agreement was applicable to the Employee’s

claim, the burden shifted to the Employee to show a defense to enforcing the agreement.

Here, the Employee argues that the Agreement is substantively unconscionable based on

the two provisions requiring each party to pay its own attorneys’ fees despite the litigant’s

right for a court to award a reasonable attorneys’ fees as part of the costs to a prevailing

plaintiff in an age discrimination action under Texas Labor Code section 21.259. The

Company posits the attorneys’ fees provisions are not u nconscionable because they simply

state the American Rule

. The Employee argues because the attorneys’ fees provisions are

clear, specific, and unqualified, the parties are obligated to pay their own attorneys’ fees.

We agree with the Employee’s interpretation of the attorneys’ fees provisions

despite the provision generally authorizing the arbitrator to award remedies. The two

attorneys’ fees provisions embedded in the Arbitration Agreement effectively disavow the

Employee of his statutory right for the arbitrator to exercise their discretion under Texas

Labor Code section 21.259(a) to award attorneys’ fees by clearly and specifically taking

attorneys’ fees out of the scope of an arbitration award.

“By agreeing to arbitrate a statutory claim, a p arty does not forgo the substantive

rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a

judicial, forum.” Mitsubishi Motors Corp. v. Soler Chrysler

- Plymouth, Inc., 473 U.S. 614,

628 (1985)

. In Hadnot v. Bay, Ltd. , 344 F.3d 474, 478 (5th Cir. 2003), the Fifth Circuit

rendered unconscionable a provision eliminating punitive damages for Title VII

discrimination claims because it abridged an employee’s statutory rights. In Security

Services Federal Credit Union

, 264 S.W.3d at 300

– 01, our sister court similarly rendered

unconscionable a provision eliminating statutory remedies available under the Deceptive6 Trade Practices Act. Additionally, in In re Poly

- America, L.P.

, 262 S.W.3d at 352, the

Texas Supreme Court held unconscionable arbitration agreement provisions eliminating

reinstatement and punitive damages available under the Worker’s Compensation Act

because the remedies are a “non

- waivable legislative system for deterrence nec essary to

the nondiscriminatory and effective operation of the Texas Workers’ Compensation system

as a whole

. ”

Awarding a prevailing plaintiff attorneys’ fees in a claim under Texas Labor Code

section 21.259 is part of a measured legislative decision for t he public policy purpose of

endeavoring to eliminate discrimination in the workplace by making the complaint process

accessible to employees who have been aggrieved. See e.g

., Ridge Nat. Res., L.L.C. v.

Double Eagle Royalty, L.P.

, 564 S.W.3d 105, 137

– 38 (Tex.App.

— El Paso 2018, no pet.);

see also Hensley v. Eckerhart , 461 U.S. 424, 429 (1983)(“The purpose of § 1988 is to

ensure ‘effective access to the judicial process’ for persons with civil rights

grievances.”)(quoting H.R.Rep. No. 94

- 1558, p. 1 ( 1976)). We have previously found

contract provisions are substantively unconscionable when they deny a statutory remedy

that exists for the public policy purpose of deterring certain behavior. See Ridge Nat. Res.,

L.L.C. , 564 S.W.3d at 135

– 36.

If we were to allow arbitration agreement provisions requiring each party to pay its

own attorneys’ fees without regard for a finding of liability against the employer, we would

be undercutting the legislature’s intent by allowing employers to simply move these claims

to an arbitral forum. Id. The Texas Supreme Court has explained “it would be

unconscionable for an arbitration agreement to mandate arbitration of a statutory claim and

at the same time eliminate the rights and remedies afforded by the statute .” Venture Cotton

Co

- op. v. Freeman

, 435 S.W.3d 222, 229 (Tex. 2014). Accordingly, we find the attorneys’

fees provisions in the Arbitration Agreement are substantively unconscionable. Appellant’s

first issue is overruled.

Severability7 The next question is whether the entire Arbitration Agreement is invalid or whether

the attorney fee provisions should be severed, and the Agreement saved. The answer turns

on whether the main purpose of the Agreement would be maintained absent the attorney

fee provisions. See Hadnot, 344 F.3d at 478; Williams v. Williams , 569 S.W.2d 867, 871

(Tex. 1978).

The Employee argues that the entire Arbitration Agreement is invalid and the

attorneys’ fees provisions may not be severed from the Agreement because (1) there is no

severability clause in the Agreement, (2) the Agreement states it “can be changed, modified,

or termina ted only as specifically stated” in the Agreement, and the court cannot judicially

rewrite the Agreement. Third, the Employee argues that the entire Arbitration Agreement is

invalid because “the unconscionable limitation of [] remedies is in fact part of t he main

purpose of the arbitration policy . . . to limit [the Company’s] liability exposure to

employees.” The Employee argues that considering the Arbitration Agreement’s purpose

simply to arbitrate rather than to litigate is a superficial approach not co nsidering the “why”

behind the policy as evidenced by the agreement language stating, “‘Casa Ford believes that

it is in the best interests of both its employees and the Company to resolve those disputes in

a forum that provides the fastest, least expensive and fairest method for resolving them. ’ ”

The Employee argues the agreement term “abrogating employees’ statutory remedies is thus

part and parcel of [the Company’s] stated purpose of resolving disputes in the ‘ least

expensive’ manner, not just a peripheral provision.”

The Company acknowledges there is no severability clause in the Agreement.

However, the Company argues if the court finds the attorneys’ fees requirements

substantively unconscionable, it should sever the provisions, as the main purpose of t he

Agreement is to arbitrate employment disputes ; moreover, given that the Agreement also

provides for the arbitrator to award remedies allowed in the litigation process, the Company8 would have entered into the Agreement without the attorneys’ fees provisi ons.

While a severance clause evidences the parties’ intent for a contract to survive

specific invalid provisions, courts have relied on their inherent power to sever nonessential

unconscionable contract provisions. See e.g.

, Venture Cotton Co

- op. , 435 S.W.3d at 230;

Hadnot, 344 F.3d at 478. To determine w hether provisions are nonessential to the contract,

the relevant inquiry is whether the parties would have contracted absent the unconscionable

provision(s) and whether the main purpose of the Agreement would be maintained absent

the attorney fee provisions. Ridge Nat. Res., L.L.C. , 564 S.W.3d at 139 ; In re Kasschau , 11

S.W.3d 305, 313 (Tex.App.

— Houston [14th Dist.] 1999, no pet.)

. See also Hadnot , 344

F.3d at 478 ; Williams , 569 S.W.2d at 871

. Although the Agreement articulates the Company’s “belief” that arbitration provides

“the fastest, least expensive and fairest method” of resolution, we do not equate that to the

proposition that the attorneys’ fees provisio ns were the main purpose of the agreement nor

that the parties would not have agreed but for the attorneys' fees provisions. Because the

Employee is better off with the attorney fee provisions severed, we cannot conclude that the

Employee would have quit h is job rather than be subjected to the same Arbitration Agreement

less its unconscionable attorneys’ fee provisions. Similarly, the Company’ s assertion s that

(1) the purpose of the Arbitration Agreement is to arbitrate employment disputes and (2)

another p art of the Agreement states that the arbitrator “has the authority to award any remedy

that would have been available to you had you litigated the dispute in court under applicable

law” leads us to conclude that it would have entered into the Arbitration A greement

notwithstanding the attorneys’ fees provisions.

We understand the main purpose of the Arbitration Agreement to be to arbitrate

employment disputes. Given Texas precedent favoring arbitration as an intended lower

- cost,

expedited way to resolve disp utes compared to litigation, severing the invalid clauses rather9 than invalidating the entire Arbitration Agreement is the appropriate judicial action when

severance does not take from the main purpose of the agreement. Ridge Nat. Res., L.L.C., 564

S.W.3d at 139 ; In re Poly

- America, L.P. , 262 S.W.3d at 347, 360. Appellant’s second issue

is sustained.

Holding

Because the Arbitration Agreement contains nonessential provisions which, in

contravention of the Employee’s statutory remedies, unconditionally mandate that each

party pay its own attorneys’ fees, we exercise our inherent power to sever or strike those

unconscionable provisions and render the remaining Arbitration Agreement legall y valid.

Appellant’s third issue is sustained.

CONCLUSION

Accordingly, we reverse the trial court’s judgment, sever the two attorneys’ fees

provisions from the Arbitration Agreement, and remand with instructions to the trial court to

enter an order consistent with this opinion.

November 30 , 2022 YVONNE T. RODRIGUEZ, Chief Justice

Before Rodriguez, C.J., Palafox, J., and Larsen, Senior Judge Larsen, Senior Judge (Sitting by Assignment) Palafox, J., Would D issent