                                            NO. 12-10-00108-CV

                               IN THE COURT OF APPEALS

                      TWELFTH COURT OF APPEALS DISTRICT

                                               TYLER, TEXAS

IN RE: ASTRO AIR, L.P.,                                     §

RELATOR                                                    §                      ORIGINAL PROCEEDING

                                                          §

                                                MEMORANDUM OPINION
         By petition for writ of mandamus, Astro Air, L.P. challenges the trial court’s order denying its
motion to abate the underlying proceeding and compel arbitration.1 The real party in interest is Sharron
Hall. We deny the petition.


                                                     BACKGROUND
         Hall was hired by Astro in December 2005. She worked for Astro until she was injured on the
job in July 2007. Because she believed that her injury was caused by Astro’s negligence, Hall sued
Astro. Shortly thereafter, Astro filed a motion to abate the underlying proceeding and compel
arbitration.
         In its motion, Astro argued that the claims Hall asserted were covered claims under an
arbitration agreement between Hall and Astro. However, Astro failed to present an arbitration
agreement signed by Hall. Instead, Astro presented an affidavit and deposition testimony from Lora
Griffith Western, Astro’s human resources manager at the time of Hall’s hiring. According to Western,
Astro was a nonsubscriber to workers’ compensation insurance at the time Hall was hired.
Consequently, Astro’s routine practice was to explain to any new employee that it was a nonsubscriber
and that it had an ERISA compliant injury benefit plan that included an arbitration agreement. To


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             The respondent is the Honorable Dwight Phifer, Judge of the 2nd Judicial District Court, Cherokee County,
Texas.
memorialize these conversations, Astro required the signature of the new employee on several
documents, including an arbitration agreement, before the new employee began work. Based upon this
information, Astro argued that Hall must have been notified of and signed an arbitration agreement
because she worked for Astro. Further, Astro contended that its routine practice provides evidence that
Hall and Astro entered into an arbitration agreement.
        Astro admitted that another of its routine practices was to keep the documents discussed with a
new employee, including the signed arbitration agreement, in the employee’s personnel file. However,
Astro was acquired by Luvata Grenada, L.L.C., in August 2007. Although Astro sent personnel files to
Luvata Grenada, the contents of Hall’s personnel file have not been located.
        In response to Astro’s motion to compel arbitration, Hall stated by affidavit that she did not
recall being informed of an arbitration agreement, agreeing to be bound by an arbitration agreement, or
signing an arbitration agreement. She did remember being told that Astro did not participate in
workers’ compensation.
        After hearing argument and reviewing the affidavits and deposition testimony, the trial court
denied Astro’s motion. Astro then filed its petition for writ of mandamus.


                                     AVAILABILITY OF MANDAMUS
        Ordinarily, mandamus will issue to correct a clear abuse of discretion where there is no adequate
remedy by appeal. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.
proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). With respect
to the resolution of factual matters or matters committed to the trial court’s discretion, we may not
substitute our own judgment for that of the trial court. Walker, 827 S.W.2d at 839. In such matters, the
relator must establish that the trial court could reasonably have reached only one decision. Id. at 840.
Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court’s
decision unless it is shown to be arbitrary and unreasonable. Id. Review of a trial court’s determination
of the legal principles controlling its ruling is much less deferential. Id. A trial court has no discretion
in determining what the law is or applying the law to the facts. Id. Consequently, a clear failure by the
trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id. The party seeking
the writ of mandamus has the burden of showing that the trial court abused its discretion. In re E. Tex.

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Med. Ctr. Athens, 154 S.W.3d 933, 935 (Tex. App.—Tyler 2005, orig. proceeding).
        In drafting an arbitration provision, parties are free to specify which arbitration act governs their
agreement to arbitrate. Citizens Nat’l Bank v. Bryce, 271 S.W.3d 347, 353 (Tex. App.—Tyler 2008,
orig. proceeding [mand. denied]) (combined interlocutory appeal and original proceeding) (citing Volt
Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 477-79, 109 S. Ct. 1248,
1254-56, 103 L. Ed. 2d 488 (1989)). When the Federal Arbitration Act (the “FAA”) applies, and a trial
court erroneously denies a party’s motion to compel arbitration under the FAA, the movant has no other
adequate remedy at law and is entitled to a writ of mandamus. In re FirstMerit Bank, N.A., 52 S.W.3d
749, 753 (Tex. 2001) (orig. proceeding). Here, Astro seeks to enforce an arbitration agreement that
specifically states, “The FAA governs all aspects of this agreement.” Thus, mandamus is the proper
avenue for Astro to challenge the trial court’s denial of its motion to compel arbitration. We therefore
focus our inquiry on whether the trial court abused its discretion in denying the motion.


                                    THE ARBITRATION AGREEMENT
        Astro argues that Hall executed a copy of the arbitration agreement and that it presented
“overwhelming evidence” establishing its routine practice of providing all new employees with a copy
of the agreement. According to Astro, its evidence of routine practice is admissible to establish that it
provided notice of the arbitration agreement to Hall. Therefore, Astro concludes, the arbitration
agreement is valid, and Hall is bound to arbitrate her claims against Astro, because Hall either signed
the agreement or at least received notice of the agreement. On the other hand, Hall argues that Astro did
not establish that Hall signed the arbitration agreement and that Astro’s proof did not conclusively
refute any of the statements in Hall’s affidavit. Hall further contends that she is entitled to a spoliation
inference because relevant evidence—her personnel file—was lost while in Astro’s possession.
Contract Law
        Arbitration agreements are valid, irrevocable, and enforceable to the same extent as any other
contract. 9 U.S.C.A. § 2 (West 1999). Thus, an arbitration agreement is valid if it satisfies the general
contract law requirements of the applicable state. In re Poly-America, L.P., 262 S.W.3d 337, 347 (Tex.
2008) (orig. proceeding). Therefore, we must first determine whether the arbitration agreement in this
case satisfies Texas law governing contract formation. See id; see also In re Morgan Stanley & Co.,

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293 S.W.3d 182, 187 (Tex. 2009) (orig. proceeding) (courts have authority and responsibility to
determine existence of contract containing relevant arbitration agreement). Arbitration agreements are
treated the same as any other contract. In re Poly-America, L.P., 262 S.W.3d at 347. Once an
enforceable arbitration agreement is found, the strong federal presumption in favor of arbitration
requires doubts not relating to enforceability to be resolved in favor of arbitration. Id. at 348. But the
initial determination of whether an enforceable agreement exists is determined through the neutral
application of contract law. Id.
       The elements necessary to form a binding contract are (1) an offer, (2) acceptance in strict
compliance with the terms of the offer, (3) a meeting of the minds, (4) a communication that each party
consented to the terms of the contract, (5) execution and delivery with the intent that it become mutual
and binding, and (6) consideration. Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 24
(Tex. App.—Houston [14th Dist.] 2005, no pet.). Whether an agreement was reached is a question of
fact. Id. Additionally, in the employment context, a party asserting a change to an at will employment
contract must prove that the other party received notice of the change and accepted the change. In re
Halliburton Co., 80 S.W.3d 566, 568 (Tex. 2002) (orig. proceeding). To prove notice, an employer
asserting a change must prove that it unequivocally notified the employee of a definite change in
employment terms. Id. When an employer so notifies an employee and the employee continues
working with knowledge of the change, the employee has accepted the change as a matter of law. Id.
       Unless disputed issues of fact require a full evidentiary hearing, a trial court should decide a
motion to compel arbitration summarily. In re Poly America, L.P., 262 S.W.3d at 354. Ordinarily, the
hearing at which a motion to compel arbitration is decided involves application of the arbitration
agreement terms to undisputed facts, amenable to proof by affidavit. Jack B. Anglin Co. v. Tipps, 842
S.W.2d 266, 269 (Tex. 1992) (orig. proceeding). Therefore, the trial court generally decides whether to
compel arbitration on the basis of affidavits, pleadings, discovery, and stipulations. Id. If the facts are
disputed, the trial court must conduct an evidentiary hearing to determine the disputed facts. Id.
Routine Practice and Spoliation Evidence
       Evidence of the routine practice of an organization is relevant to prove that the organization
acted in conformity with its routine practice on a particular occasion. TEX. R. EVID. 406. Thus, a
party’s routine response to a repeated, specific situation is admissible. Pacesetter Corp. v. Barrickman,

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885 S.W.2d 256, 263 (Tex. App.—Tyler 1994, no writ). However, the routine practice of an
organization does not conclusively establish the fact sought to be proved. See In re Advance EMS
Servs., No. 13-06-00661-CV, 2009 Tex. App. LEXIS 1134, at *9-10 (Tex. App.—Corpus Christi
Feb. 12, 2009, orig. proceeding) (mem. op.) (employer’s representative testified employees not allowed
to begin work until they signed acknowledgment of arbitration agreement; trial court could properly
conclude no valid arbitration agreement where representative did not provide direct and unequivocal
testimony and lacked personal knowledge of pertinent revisions).
        Spoliation is the improper destruction of evidence relevant to a case. Adkison v. Adkison, No.
12-06-00077-CV, 2007 WL 259550, at *3 (Tex. App.—Tyler Jan. 31, 2007, no pet.) (mem. op).


        Evidence spoliation is not a new concept. For years courts have struggled with the problem and devised
        possible solutions. Probably the earliest and most enduring solution was the spoliation inference or omnia
        praesumuntur contra spoliatorem: all things are presumed against a wrongdoer. In other words, within
        the context of the original lawsuit, the factfinder deduces guilt from the destruction of presumably
        incriminating evidence.


Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex. 1998) (internal citations omitted). This traditional
response to the problem of evidence spoliation properly frames the alleged wrong as an evidentiary
concept, not a separate cause of action. Id. “[W]hen spoliation occurs, there must be adequate measures
to ensure that it does not improperly impair a litigant’s rights . . . .” Id. at 953. It is simple, practical,
and logical to rectify any improper conduct within the context of the lawsuit in which it is relevant. Id.
        The loss or destruction of evidence may seriously impair a party’s ability to present its case.
Tex. Electric Co-op. v. Dillard, 171 S.W.3d 201, 208 (Tex. App.—Tyler 2005, no pet.) (citing Wal-
Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex. 2003)). The trial court enjoys discretion to
fashion an appropriate remedy to restore the parties to “a rough approximation of their positions if all
evidence were available.” See Johnson, 106 S.W.3d at 721.


        Because parties have a duty to reasonably preserve evidence, it is only logical that they should be held
        accountable for either negligent or intentional spoliation. While allowing a court to hold a party
        accountable for negligent as well as intentional spoliation may appear inconsistent with the punitive
        purpose of remedying spoliation, it is clearly consistent with the evidentiary rationale supporting it
        because the remedies ameliorate the prejudicial effects resulting from the unavailability of evidence. In
        essence, it places the burden of the prejudicial effects upon the culpable spoliating party rather than the
        innocent nonspoliating party.


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See Trevino, 969 S.W.2d at 957 (Baker, J., concurring) (internal citations omitted).
Application
        Here, Astro provided admissible routine practice evidence that it had entered into a binding
arbitration agreement with Hall. See TEX. R. EVID. 406. The evidence was not only admissible, but also
strong and persuasive that Hall was notified of the arbitration agreement and that she signed the
arbitration agreement. But Astro’s proof was not conclusive.
        Astro was unable to provide the trial court with an arbitration agreement signed by Hall. The
deposition testimony of Lora Griffith Western, Astro’s human resources manager at the time of Hall’s
hiring, demonstrated that Western believed Hall was notified of and signed the acknowledgement of the
arbitration agreement, but she was not certain. In fact, Western stated that she could not be certain
without seeing the contents of Hall’s personnel file. Also, Hall controverts Astro’s proof to some extent
by stating in her affidavit that she could not recall signing or being presented with an arbitration
agreement. Hall admitted that Astro explained it did not participate in workers’ compensation, but this
evidence does not conclusively establish that Hall was notified of an arbitration agreement or that she
signed such an agreement.
        Hall also asserts that the spoliation inference should inure to her benefit because her personnel
file, including any arbitration agreement that may have been in the file, was in Astro’s possession, and
Astro negligently lost the contents of the personnel file. The contents of the personnel file are critical
evidence in this case because a signed copy of an arbitration agreement would conclusively demonstrate
that Hall and Astro had an agreement to arbitrate. An unsigned copy or no copy at all would be strong
evidence that Astro’s routine procedure was not followed in this case and thus, evidence that Hall was
not presented with an arbitration agreement or required to sign an arbitration agreement before
beginning work.
        We agree with Hall that Astro’s evidence in this case is not conclusive. Astro’s evidence of its
routine practice is sufficient to allow the trial court to find that an arbitration agreement existed between
Astro and Hall. However, Astro’s burden is heavier than that. Although Astro presented strong
evidence of its routine practice, we cannot say that the trial court could reasonably have reached but one
decision about the existence of an agreement to arbitrate. See Walker, 827 S.W.2d at 839. Therefore,
the trial court did not abuse its discretion in denying Astro’s motion to compel arbitration.
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                                                     DISPOSITION
         Because Astro has not shown an abuse of discretion by the trial court, we deny its petition for
writ of mandamus.
                                                                   BRIAN HOYLE
                                                                     Justice


Opinion delivered September 15, 2010.
Panel consisted Worthen, C.J., Griffith, J., and Hoyle, J.




                                                      (PUBLISH)




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