      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00711-CV



                                   Rita Murdock, Appellant

                                                v.

              Trisun Healthcare, LLC d/b/a Park Place Health Center, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
      NO. D-1-GN-07-003108, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                              DISSENTING OPINION


               The trial court correctly confirmed the parties’ arbitration award because Murdock

and her employer Trisun had a binding agreement to arbitrate workplace injury claims. As such, I

respectfully dissent.

               I would hold that Trisun met its burden to prove the existence of a valid arbitration

agreement covering Murdock’s claims, notice to Murdock of that arbitration agreement, and

acceptance of that agreement by Murdock. In August 2005, before the injury at issue here, Murdock

attended a meeting at which Trisun informed its staff that it did not subscribe to the workers’

compensation system for employee injury claims, but rather had implemented an employee “injury

protection plan” and arbitration policy. In fact, Murdock signed an “Acknowledgment of Arbitration

Agreement and Attendance,” stating:
        I acknowledge my attendance and my acceptance of the ARBITRATION
        AGREEMENT at the company’s meeting today to announce the implementation
        of the TRISUN Healthcare Associate Injury Protection Plan. I understand that the
        Company has elected not to purchase Workers’ Compensation Insurance and is a
        nonsubscriber to the Workers’ Compensation System. I received my personal copies
        of the following noted Materials [Summary Plan Description booklet, Highlights
        Brochure, and Arbitration Agreement], which were read and/or discussed during the
        meeting.


Murdock’s workplace injury, the subject of her underlying suit, occurred after she attended this

meeting, received copies of the actual arbitration agreement and other listed materials, and signed

the above Acknowledgment.

               Under Texas law, an employer may enforce an arbitration agreement if the employer

establishes that the employee received notice of its arbitration policy and accepted it. In re Dallas

Peterbilt Ltd., 196 S.W.3d 161, 162 (Tex. 2006) (citing In re Dillard Dep’t Stores, Inc., 198 S.W.3d

778, 780 (Tex. 2006) (per curiam); In re Halliburton Co., 80 S.W.3d 566, 568 (Tex. 2002)).

Although the record reflects that Trisun did not require Murdock to sign the new arbitration

agreement, Trisun submitted with its motion to compel arbitration Murdock’s signature on the

above-described Acknowledgment, showing that she received notice of the arbitration agreement

and a copy of it. See Peterbilt, 196 S.W.3d at 163; Dillard, 198 S.W.3d at 780; Halliburton,

80 S.W.3d at 568-69. An at-will employee who receives notice of an employer’s arbitration policy

and continues working with knowledge of the policy accepts the terms as a matter of law. Peterbilt,

196 S.W.3d at 163; Dillard, 198 S.W.3d at 780. In this case, Murdock’s signed Acknowledgment

established not only that she received notice and a copy of the Trisun arbitration agreement, but that

she accepted it.



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               Trisun also submitted to the trial court Murdock’s agreement to arbitrate claims with

her prior employer, Trisun affiliate PM Leasing, along with uncontested affidavit testimony from

Trisun employee Brianna Braden, stating that the new arbitration agreement between Trisun and

Murdock was “substantially similar” to the prior agreement. While I agree with the majority that the

scope of the arbitration agreement must encompass the claims at issue, I disagree with the holding

that Trisun has not proven Murdock’s workplace injury claims fall within the scope of her arbitration

agreement with Trisun. Murdock’s Acknowledgment, which Trisun put in the trial court record,

plainly refers to an “injury protection plan” in lieu of workers’ compensation coverage, and the

arbitration agreement with PM Leasing, shown by uncontested affidavit testimony to be

“substantially similar,” expressly encompasses workplace injury claims. Further, the record contains

no indication that Murdock ever contradicted Trisun’s evidence or raised any argument in

the trial court that she was not given notice of the scope of the agreement or that the agreement

did not encompass injury claims. Thus, even if there were a question about whether the scope of

the agreement reached Murdock’s claims here, any such argument on appeal is waived. See Nabors

Drilling USA, LP v. Carpenter, 198 S.W.3d 240, 249 (Tex. App.—San Antonio 2006,

orig. proceeding) (concluding that because employee did not controvert his former employer’s

trial court proof about notice and acceptance of arbitration policy, those arguments were waived).

               The majority also concludes that the trial court’s ruling does not specify whether it

is based on the agreement between Murdock and Trisun or Murdock and her former employer,

PM Leasing. The plain language of the trial court’s order compelling arbitration makes no mention

of any agreement between Murdock and PM Leasing, but rather concludes “the arbitration agreement



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between Rita Murdock and Trisun Healthcare, LLC is a binding agreement to arbitrate.” Although

Murdock’s employment with PM Leasing had clearly ended by the time of her injury, the majority

undertakes an analysis of the PM Leasing arbitration agreement in the alternative, asking whether

Trisun, as an affiliate of PM Leasing, can compel arbitration under this prior arbitration agreement

Murdock signed while working for PM Leasing. Despite the parties’ focus on this prior agreement

in their briefing, I would hold that the only relevance of Murdock’s arbitration agreement from

prior employment is to evidence the contents of Murdock’s new agreement with Trisun, in light of

Trisun’s uncontested affidavit testimony that the two agreements were “substantially similar.”

               Because Murdock accepted a binding agreement to arbitrate workplace injury claims

directly with Trisun, and because Trisun put on evidence of proper notice of that agreement and

its scope through Murdock’s signed Acknowledgment, uncontested affidavit testimony, and the

“substantially similar” previous arbitration agreement, I would affirm the trial court’s judgment

confirming the results of the parties’ binding arbitration.




                                               Jeff Rose, Justice

Before Justices Puryear, Rose, and Goodwin

Filed: May 9, 2013




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