     Case: 13-20322      Document: 00512471819         Page: 1    Date Filed: 12/16/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                    No. 13-20322                      December 16, 2013
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
KIMBERLY RAMIREZ,


                                                 Plaintiff - Appellant
v.

24 HOUR FITNESS USA, INCORPORATED; 24 HOUR FITNESS,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-1922


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Kimberly Ramirez claims to have suffered injuries when she slipped and
fell at a 24 Hour Fitness gym. She sued 24 Hour Fitness in state court, and 24
Hour Fitness removed the case to federal court based on diversity jurisdiction.
24 Hour Fitness then moved for summary judgment because Ramirez signed a
membership agreement that released it from liability for personal injury



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 13-20322
claims caused by its negligence.       The district court granted summary
judgment. Ramirez appeals the district court’s decision. We AFFIRM.
      “We review a district court’s grant of summary judgment de novo.” Reed
v. Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012). Ramirez asserts five
issues on appeal, which can be grouped into three: whether the membership
agreement is illusory; whether the release of liability clause is unconscionable;
and whether the release of liability clause fails to comply with Texas’s fair
notice requirements.     These are issues of law reviewed de novo.            See
Vandeventer v. All Am. Life & Cas. Co., 101 S.W.3d 703, 720 (Tex. App. – Fort
Worth 2003) (illusory); In re Poly-America, L.P., 262 S.W.3d 337, 349 (Tex.
2008) (unconscionable); Dresser Indus., Inc. v. Page Petroleum, Inc., 853
S.W.2d 505, 509 (Tex. 1993) (fair notice).
      Ramirez’s first argument, that the membership agreement was illusory,
relies on our holding in Carey v. 24 Hour Fitness, USA, Inc., 669 F.3d 202 (5th
Cir. 2012). There, we held that an agreement to arbitrate in the 24 Hour
Fitness employee handbook was illusory because the employer retained the
“right to revise, delete, and add to the employee handbook” without providing
meaningful notice to the employee. Carey, 669 F.3d at 206, 209. In this case,
24 Hour Fitness included related language in its membership agreement by
retaining the right “to modify the policies and any club rule without notice at
any time.” Ramirez contends that this language means her agreement with 24
Hour Fitness was also illusory.
      As an initial matter, the district court here noted that Carey resolved an
arbitration dispute between an employer and employee. It correctly concluded
that Carey expressed an “arbitration-specific” holding, not readily applicable
to the enforceability of a release of liability agreement. Carey’s basic concern
was that one party should not be allowed to negate a promise by retaining the
right to alter that promise: “Thus, the fundamental concern driving this line of
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                                  No. 13-20322
case law is the unfairness of a situation where two parties enter into an
agreement that ostensibly binds them both, but where one party can escape its
obligations under the agreement by modifying it.” Id. at 209. Carey applied
law that invalidated arbitration agreements when the writer of the agreement
could unilaterally decide not to be bound by it. Id. at 205. The release of
liability provision, though, is not a mutual release; it already was one-sided.
      Regardless, 24 Hour Fitness did not retain the right to invalidate the
release of liability agreement. In Carey, the language in the contract clearly
gave 24 Hour Fitness the right to modify its employee handbook at any time
and for any reason, and therefore it was able to alter terms of employment with
its employees. Id. at 206. The language in the release provision is not so broad.
24 Hour Fitness only retained the right to modify its “policies” and “rules.” The
membership agreement does not define those terms or otherwise indicate that
releasing 24 Hour Fitness from liability for its negligence qualifies as a policy
or rule. Whatever the effect of 24 Hour Fitness’ right, we agree with the district
court that it does not give 24 Hour Fitness the right to modify the agreement’s
terms generally or the release of liability clause specifically. Because there is
no danger that 24 Hour Fitness would or could amend or terminate Ramirez’s
agreement to release it from liability, the release is not unenforceable for this
reason. See In re 24R, Inc., 324 S.W.3d 564, 566-67 (Tex. 2010).
      Next, Ramirez contends that the agreement is unconscionable. She first
appears to argue that the clause is procedurally unconscionable because her
schedule provided limited gym options. That created a situation in which she
felt forced to sign the membership agreement in order to maintain her health.
Ramirez admits in her briefing, though, that she had other, perhaps less
desirable, exercise options. There were other exercise facilities available in her
area, and she could have exercised without the use of a gym. Instead, she chose
to use the facilities at 24 Hour Fitness, which included releasing the company
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                                    No. 13-20322
from liability as a condition for membership.           The district court correctly
reasoned that Ramirez was free not to sign the agreement. See Allright, Inc. v.
Elledge, 515 S.W.2d 266, 267 (Tex. 1974) (Reavley, J.).
      Ramirez also appears to assert that the clause was substantively
unconscionable by comparing the clause in the membership agreement to the
exculpatory clause in Crowell v. Housing Authority of City of Dallas, 495
S.W.2d 887 (Tex. 1973). In Crowell, the Texas Supreme Court invalidated a
clause that purported to release the Dallas Housing Authority from premises
liability. Id. at 889. That decision was founded on the public policy concern
that entities like the Dallas Housing Authority should not be able to release
themselves “from liability for negligence in the performance of their duty of
public service.” Id. There are no such public policy concerns here. 24 Hour
Fitness is a private gym which Ramirez chose to join. Ramirez bargained away
any potential recovery in exchange for the conveniences offered by 24 Hour
Fitness. 1 That agreement is not so obviously shocking or gross that it is
unenforceable. Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 136 (Tex. App.
– Waco 2005). The district court correctly determined that Ramirez did not
carry her burden of showing that the agreement was either procedurally or
substantively unconscionable. Id.
      Finally, Ramirez’s arguments about the text and language of the release
are unconvincing, regardless of whether they are seen as arguments about fair
notice or unconscionability. Ramirez parses the language of the clause in such
a way as to suggest there is ambiguity. The district court correctly concluded




      1  24 Hour Fitness does not discuss what benefits Ramirez received by signing this
agreement, but Ramirez does not argue that she did not receive any benefits from 24 Hour
Fitness. The contract provides that Ramirez’s release was “consideration of [her]
participation in the activities offered by 24 Hour.”
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                                  No. 13-20322
that the clause contains the language necessary to comply with Texas’s fair
notice requirements and was sufficiently clear to express its purpose.
      We also reject the arguments that Texas law required the release to be
in a larger font size; that the font size was too small to be understood by
Ramirez; or that the language was emphasized (by bold, but not completely
underlined) in such a way as to confuse Ramirez as to its meaning. The district
court pointed out that the font size was no smaller than the other membership
provisions and the language was captioned with the larger phrases,
“RELEASE OF LIABILITY · ASSUMPTION OF RISK,” which draws the
reader’s attention to that portion of the contract. The district court did not err
in finding that the clause was conspicuous and clear enough to be understood
by Ramirez.
      AFFIRMED.




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