Stripes LLC v. Hazzem Mrayyan

ACCEPTED
13-15-00246-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
7/6/2015 4:51:05 PM
CECILE FOY GSANGER
CLERK

NO. 13-15-00246-CV

FILED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FOR THE THIRTEENTH DISTRICT OF TEXAS
7/6/2015 4:51:05 PM
AT CORPUS CHRISTI/EDINBURG, TEXAS
CECILE FOY GSANGER
Clerk

Stripes LLC,
Appellant/Defendant,
v.

Hazem Mrayyan,
Appellee/Plaintiff.

On Appeal from County Court at Law Number One of Nueces County, Texas
The Honorable Robert J. Vargas, Judge Presiding

APPELLANT’S BRIEF

Oral Argument Requested

Gary D. Sarles
State Bar No. 17651100
O. Paul Dunagan
State Bar No. 06202700
SARLES & OUIMET
900 Jackson Street , Suite 370
Dallas, Texas 75202
Telephone: (214) 573-6300
Facsimile: (214) 573-6306
gsarles@sarleslaw.com
dunagan@sarleslaw.com

ATTORNEYS FOR APPELLANT
 IDENTITY OF PARTIES AND COUNSEL

Appellant:
Stripes LLC Gary D. Sarles
State Bar No. 17651100
O. Paul Dunagan
State Bar No. 06202700
SARLES & OUIMET
370 Founders Square
900 Jackson Street
Dallas, Texas 75202
Telephone: 214.573.6300
Facsimile: 214.573.6306
gsarles@sarleslaw.com
dunagan@sarleslaw.com
Appellee:
Hazem Mrayyan Rudy Gonzales, Jr.
State Bar No. 08121700
Todd A. Hunter, Jr.
State Bar No. 24087774
Marion M. Reilly
State Bar No. 24079195
Hilliard Munoz Gonzales LLP
719 S. Shoreline Boulevard, Suite 500
Corpus Christi, Texas 78401
Telephone: 361-882-1612
Facsimile: 361-882-3015
rudyg@hmglawfirm.com
kimberly@hmglawfirm.com
todd@hmglawfirm.com
marion@hmglawfirm.com

David T. Burkett
State Bar No. 03410500
The Burkett Law Firm
538 S. Tancahua
Corpus Christi, Texas 78401
Telephone: 361-882-8822
Facsimile: 361-882-0733
olivia@theburkettlawfirm.com
i
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ....................................................... i

TABLE OF CONTENTS ..................................................................................... ii

INDEX OF AUTHORITIES ............................................................................... vi

STATEMENT OF THE CASE ......................................................................... xiii

STATEMENT REGARDING ORAL ARGUMENT ..................................... xiv

ISSUES PRESENTED ........................................................................................ xv

1. Whether the Trial Court abused its discretion by enjoining Stripes and the
DSI Arbitration?

2. Whether the Trial Court abused its discretion by extending the injunction
against Stripes and the DSI Arbitration?

3. Whether Plaintiff’s applications for injunctive relief and the Trial Court’s
temporary injunction orders are void for having violated the stay imposed
by Section 171.025 of the Texas Civil Practice and Remedies Code and
formalized in the Trial Court’s December 2, 2015 Agreed Stay Order?

4. Whether Plaintiff’s applications for a temporary injunction were
properly verified and properly before the Trial Court?

5. Whether Plaintiff failed to plead and prove a cause of action?

6. Whether the temporary injunction orders improperly destroy rather than
preserve the status quo?

7. Whether Plaintiff established imminent, irreparable harm?

A. Whether the Trial Court has the right to decide arbitrability when the
Election And Arbitration Agreement and the DSI Rules provide that
the DSI arbitrator is to decide all arbitrability disputes and challenges?
B. Whether Plaintiff waived any objection to the DSI arbitrator’s
jurisdiction?
ii
8. Whether Plaintiff proved a probable right to the injunctive relief sought?

A. Whether Plaintiff proved that the courts have the right to decide
arbitrability disputes under the Election And Arbitration Agreement?
B. Whether Plaintiff proved that he has the right to trial by jury?
1. Whether Plaintiff proved the Election And Arbitration
Agreement is unenforceable?
2. Whether Plaintiff ratified the Election And Arbitration
Agreement?
3. Whether the Agreed Stay Order independently obligates
Plaintiff to arbitrate as a Rule 11 agreement?

9. Whether Stripes intentionally, unequivocally waived its arbitration rights?

ABBREVIATIONS AND RECORD REFERENCES ..................................... xiv

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

The Mrayyan Brothers. .......................................................................................... 1

The Election And Arbitration Agreement and ERISA Plan. ................................. 3

Plaintiff Accepted the Terms of the Election And Arbitration Agreement ........... 5

Plaintiff’s March 27, 2013 On-the-Job Injury at Stripes ....................................... 7

Payments by the Plan. ............................................................................................ 7

Plaintiff’s Counsel’s Knowledge of the Plan’s Payments. .................................... 8

Stripes Added to this Lawsuit. ............................................................................... 10

The December 2, 2014 Agreed Stay Order ........................................................... 11

Plaintiff’s March 6 and 19, 2015 Demands for Arbitration. ................................. 12

The Plan’s Plea in Intervention .............................................................................. 13

The Plan’s Questioning of Dr. Snook. ................................................................... 15

iii
 The DSI Arbitration ............................................................................................... 16

Plaintiff’s Applications to Enjoin the DSI Arbitration .......................................... 17

Stripes’ Filings in this Court .................................................................................. 18

SUMMARY OF THE ARGUMENT .................................................................. 20

ARGUMENT ......................................................................................................... 26

I. PLAINTIFF’S APPLICATIONS FOR INJUNCTIVE RELIEF AND
THE ORDERS GRANTING IT ARE ALL VOID. ..................................... 26

II. IN ADDITION TO BEING VOID, PLAINTIFF’S FIRST AMENDED
APPLICATION WAS ALSO NOT PROPERLY VERIFIED, AND
PLAINTIFF’S VERIFIED FIFTH AMENDED PETITION WAS NOT
PROPERLY BEFORE THE TRIAL COURT. ............................................ 28

III. PLAINTIFF FAILED TO PLEAD AND PROVE A CAUSE
OF ACTION ................................................................................................. 32

IV. THE TEMPORARY INJUNCTION DESTROYED
THE STATUS QUO ..................................................................................... 38

V. PLAINTIFF FAILED TO ESTABLISH IMMINENT, IRREPARABLE
HARM. ......................................................................................................... 43

A. Plaintiff has no right to have the Trial Court decide arbitrability;
Arbitrator Black decides all arbitrability disputes. ................................ 44

B. Plaintiff has waived any objection to Arbitrator Black’s jurisdiction. . 48

VI. PLAINTIFF FAILED TO PROVE A PROBABLE RIGHT TO THE
INJUNCTIVE RELIEF SOUGHT. .............................................................. 51

A. Plaintiff failed to prove that the courts have the right to decide
arbitrability disputes. ............................................................................ 51

B. Plaintiff failed to prove that he has the right to trial by jury. ............... 52

iv
 1. The Election And Arbitration Agreement is enforceable. ............53

2. Plaintiff ratified the Election And Arbitration Agreement. .........58

3. The Agreed Stay Order obligates Plaintiff to arbitrate. ...............60

VII. STRIPES DID NOT WAIVE ITS ARBITRATION RIGHTS. ...................61

CONCLUSION......................................................................................................63

PRAYER ................................................................................................................64

CERTIFICATE OF SERVICE ...........................................................................64

CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(i)(3) ..........................65

v
 INDEX OF AUTHORITIES
Cases

8100 N. Freeway Ltd. v. City of Houston, 329 S.W.3d 858
(Tex. App.—Houston [14th Dist.] 2010, no pet.) .........................................42

Adust Video v. Nueces County, 996 S.W.2d 245
(Tex. App.—Corpus Christi, 1999, no pet.) ..................................................34

Akins v. Citizens Nat’l Bank, 217 S.W.2d 199
(Tex. Civ. App.—El Paso 1948, writ ref’d) ..................................................61

Aspri Investments, LLC v. Afeef, 2011 Tex. App. LEXIS 7082
(Tex. App.—San Antonio Aug. 31, 2011, pet. dism’d)(mem. op .) ............. 48

Associate Employers Lloyds v. Howard, 156 Tex. 277, 294 S.W.2d 706 (1956) ... 56

Aviles v. Russell Stover Candies, Inc., 559 Fed. Appx. 413,
2014 U.S. App. LEXIS 6248 (5th Cir. April 4, 2014) ............................45, 52

Ballenger v. Ballenger, 668 S.W.2d 467 (Tex. App.—Corpus Christi 1984,
writ dism’d w.o.j.) ...................................................................................22, 38

Barker v. Roelke, 105 S.W.3d 75 (Tex. App.—Eastland 2003, pet. denied) .......... 60

Burlington Resources Oil & Gas Co. v. San Juan Basin Royalty Trust,
249 S.W.3d 34 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) ......47, 52

Bustos v. Intex Aviation Services, Inc., 1996 U.S. Dist. LEXIS 14475
(N.D. Tex. Aug. 26, 1996)(Buchmeyer, C.J.) ...............................................59

Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002) ......................32, 34, 43, 51

Cantella & Co. v. Goodwin, 924 S.W.2d 943 (Tex. 1996) .....................................54

Cantu v. Holiday Inns, 910 S.W.2d 113
(Tex. App.—Corpus Christi 1995, writ denied) ............................................28

Circuit City Stores v. Curry, 946 S.W.2d 486
(Tex. App.—Fort Worth 1997, orig. proceeding) .........................................50
vi
City of Arlington v. Dallas-Fort Worth Safety Coach Co., 270 S.W. 1094
(Tex. Civ. App.—Fort Worth 1925, no writ) ................................................28

Contec Corp. v. Remote Solution Co., 398 F.3d 205 (2d Cir. 2005) .......................48

D. Wilson Constr. Co. v. McAllen Ind. Sch. Dist., 848 S.W.2d 226
(Tex. App.—Corpus Christi 1992, writ dism’d w.o.j.) ...............23, 43, 48, 54

De Villagomes v. First Nat’l Bank-Edinburg, 2005 Tex. App. LEXIS 6175
(Tex. App.—Corpus Christi 2005, pet. denied)(mem. op.) ..........................55

Ernst & Young LLP v. Martin, 278 S.W.3d 497
(Tex. App.—Houston [14th Dist.] 2009, no pet.) .........................................45

EZ Pawn Corp. v. Mancias, 934 S.W.2d 87 (Tex.1996) ...................................53, 54

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) ..............................45

Forest Oil Corp. v. McAllen, 268 S.W.3d 51 (Tex. 2008) ......................................45

Gen. Tel. Co. v. City of Wellington, 294 S.W.2d 385 (Tex. 1956) ..........................42

Guynn v. Corpus Christi Bank & Trust, 580 S.W.2d 902
(Tex. Civ. App.—Corpus Christi 1979, writ ref’d n.r.e)...............................61

Guzman v. Inter National Bank, 2008 Tex. App. LEXIS 2034,
2008 WL 739828 (Tex. App.—Corpus Christi 2008,
no pet.)(mem. op.) .........................................................................................56

Haddock v. Quinn, 287 S.W.3d 158
(Tex. App.—Fort Worth 2009, pet. denied) ............................................47, 52

Hood v. Amarillo Nat’l Bank, 815 S.W.2d 545 (Tex. 1991) ...................................27

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002) ..................................45

IHS Acquisition No. 131, Inc. d/b/a Horizon Healthcare Center at El Paso v.
Iturralde, 387 S.W.3d 785 (Tex. App.—El Paso, 2012, no pet.)............46, 52

vii
IHS Acquisition No. 171, Inc. d/b/a Mesa Hills Specialty Hospital v.
Beatty-Ortiz, 387 S.W.3d 799 (Tex. App.—El Paso, 2012, no pet.) ......46, 52

Indemnity Ins. Co. of North America v. W.L. Macatee & Sons,
129 Tex. 166, 101 S.W.2d 553 (1937) ..........................................................55

In re AdvancePCSHealth LP, 172 S.W.3d 603 (Tex. 2005) ...................................53

In re Bank One, 216 S.W.825 (Tex. 2007) ..............................................................62

In re Big 8 Food Stores, Ltd., 166 S.W.3d 869
(Tex. App.—El Paso 2005, orig. proceeding) .........................................55, 59

In re Border Steel, Inc., 229 S.W.3d 825
(Tex. App.—El Paso 2007, orig. proceeding) .........................................37, 59

In re Bruce Terminix Co., 988 S.W.2d 702 (Tex. 1998) .........................................62

In re Burton, McCumber & Cortez, LLP, 115 S.W.3d 235
(Tex. App.—Corpus Christi 2003, orig. proceeding)........................23, 44, 48

In re Consolidated Freightways, 75 S.W.3d 147
(Tex. App.—San Antonio 2002, orig. proceeding) .......................................27

In re D. Wilson Constr. Co., 196 S.W.3d 774 (Tex. 2006) .....................................62

In re FirstMerit Bank, N.A., 52 S.W.3d 749 (Tex. 2001) ..................................32, 34

In re HEB Grocery Co., L.P., 299 S.W.3d 393
(Tex. App.—Corpus Christi 2009, orig. proceeding)....................................59

In re Helena Chem. Co., 286 S.W.3d 492
(Tex. App.—Corpus Christi 2009, orig. proceeding)....................................26

In re Hospitality Employment Group, 234 S.W.3d 832
(Tex. App.—Dallas 2007, orig. proceeding) .................................................50

In re McKinney, 167 S.W.3d 833 (Tex. 2005) ........................................................54

viii
In re MetroPCS Communs., Inc., 391 S.W.3d 329
(Tex. App.—Dallas 2013, orig. proceeding) .................................................28

In re Neutral Posture, Inc., 135 S.W.3d 725
(Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) ............................47

In re Newton, 146 S.W.3d 648, 651 (Tex. 2004)...............................................21, 38

In re Nationwide Credit, Inc., 2009 Tex. App. LEXIS 2243
(Tex. App.—Corpus Christi 2009, orig. proceeding)(mem. op.) .................. 26

In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571 (Tex. 1999) ...................46, 53

In re Palm Harbor Homes, Inc., 195 S.W.3d 672 (Tex. 2006) ...............................53

In re Pediatrix Medical Services, Inc., 2005 Tex. App. LEXIS 5861
(Tex. App.—Dallas 2005, orig. proceeding)(mem. op.) ...............................26

In re Union Carbide Corp., 273 S.W.3d 152 (Tex. 2008) ......................................61

In re Vesta Ins. Group, Inc., 192 S.W.3d 759 (Tex. 2006) .....................................62

In re Weekly Homes, L.P., 180 S.W.3d 127 (Tex. 2005) ........................................44

Kotz v. Imperial Capital Bank, 319 S.W.3d 54
(Tex. App.—San Antonio 2010, no pet.) ......................................................35

Land Title Co. v. F.M. Stigler, Inc., 609 S.W.2d 754 (Tex. 1980) ..........................59

Law Funder, LLC v. Law Offices of Douglas A. Allison,
2014 Tex. App. LEXIS 2504, 2014 WL 895512
(Tex. App.—Corpus Christi March 6, 2014, no pet.)(mem. op.) .................. 34

Morrison v. Insurance Company of North America,
69 Tex. 353, 6 S.W.605 (1887) .....................................................................54

Momentis U.S. Corp. v. Weisfeld, 2014 Tex. App. LEXIS 8000,
2014 WL 3700697 (Tex. App.—Dallas July 23, 2014,
no pet.)(mem. op.) ...................................................................................47, 52

ix
Nautical Landings Marina, Inc. v. First Nat’l Bank, 791 S.W.2d 293
(Tex. App.—Corpus Christi 1990, writ denied) ............................................26

Nguyen Ngoc Giao v. Smith & Lam, P.C., 714 S.W.2d 144
(Tex. App.—Houston [1st Dist.] 1986, no writ) ...........................................56

Ouzene v. Haynes, 2012 Tex. App. LEXIS 2888, 2012 WL 1249420
(Tex. App.—Houston [1st Dist.] 2012, pet. denied)(mem. op.) ................... 49

Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008).................................................62

Petrofac, Inc. v. Dynmcdermott Petrol. Ops. Co., 687 F.3d 671 (5th Cir. 2012) ... 48

Pilgrim Investment Corp. v. Reed, 156 Wis. 2d 677, 457 N.W.2d 544
(Wis. Ct. App.), review denied, 458 N.W.2d 533 (Wis. 1990) .....................50

Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366 (Fed. Cir. 2006) ............................47

Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010)....................22, 45, 46, 52

Rio Grande Xarin, II, Ltd. v. Wolverine Robstown, LP,
2010 Tex. App. LEXIS 5189, 2010 WL 2697145 (Tex. App.—
Corpus Christi July 6, 2010, pet. dism’d)(mem. op) ................... 44-45, 47, 52

Rogers v. B&R Dev., Inc., 523 S.W.2d 15
(Tex. Civ. App.—Fort Worth 1975, no writ) ................................................58

Royston, Rayzor, Vickery & Williams, LLP v. Lopez,
2015 Tex. LEXIS 622 (Tex. June 26, 2015) .........................21, 24, 34, 53, 54

Saxa v. DFD Architecture Inc., 312 S.W.3d 224
(Tex. App.—Dallas 2010, pet. denied)....................................................47, 52

Schlumberger Tech. Corp. v. Baker Hughes, Inc., 355 S.W.3d 791
(Tex. App.—Houston [1st Dist.] 2011, no pet.) ............................................48

Star-Tel, Inc. v. Nacogdoches Telecommunications, Inc., 755 S.W.2d 146
(Tex. App.—Houston [1st Dist.] 1988, no writ) ...........................................27

x
Tamez v. Southwestern Motor Transp., Inc., 155 S.W.3d 564
(Tex. App.—San Antonio 2004, no pet.) ......................................................56

Terminix Int’l Co. v. Palmer Ranch Ltd., 432 F.3d 1327 (11th Cir. 2005) ............. 48

Texas State Board of Medical Examiners v. McKinney, 315 S.W.2d 387
(Tex. Civ. App.—Waco 1958, no writ) ...................................................28, 33

Thomas Petroleum, Inc. v. Morris, 355 S.W.3d 94 (Tex. App.—Houston
[1st Dist.] 2011, pet. denied), cert. denied, 133 S. Ct. 210 (2012) ............... 49

Trevino v. Houston Orthopedic Center, 831 S.W.2d 341
(Tex. App.—Houston [14th Dist.] 1992, writ denied) ..................................60

Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13
(Tex. App.—San Antonio 1998, no pet.) ......................................................55

Volt Info. Sciences, Inc. v. Board of Trustees, 489 U.S. 468 (1989) .......................46

Westfield Dev., Inc. v. Rubashkin, 2007 Tex. App. LEXIS 1154
(Tex. App.—Houston [1st Dist.] 2007, no pet.)(mem. op.) ..........................58

Williams v. Bagley, 875 S.W.2d 808 (Tex. App.—Beaumont 1994, no writ) ........ 28

Statutes

Texas Civil Practice and Remedies Code Section 171.025 ........................20, 26, 63

Rules

Texas Rule of Civil Procedure 11 ............................................ 12, 24, 40, 60, 61, 63

Texas Rule of Civil Procedure 14 ...........................................................................28

Texas Rule of Civil Procedure 21 .....................................................................20, 31

Texas Rule of Civil Procedure 40 .....................................................................15, 61

Texas Rule of Civil Procedure 60 .....................................................................14, 61

xi
Texas Rule of Civil Procedure 682 ...................................................................28, 33

Texas Rule of Civil Procedure 683 ..........................................................................21

Dispute Solutions, Inc. Arbitration Rule 5 .....................................23, 47, 49, 52, 63

American Arbitration Association Employment Arbitration Rule 6 .......................49

xii
 STATEMENT OF THE CASE

This is an interlocutory appeal of the Trial Court’s temporary injunction

order, Appendix Tab 1, (and a second order extending the temporary injunction,

Appendix Tab 2) enjoining Appellant Stripes LLC (“Stripes”) from going forward

in an arbitration proceeding that Appellee/Plaintiff Hazem Mrayyan (“Plaintiff”)

initiated against Stripes before Dispute Solutions, Inc. (“DSI”). The temporary

injunction orders enjoin Stripes from having the DSI arbitrator decide whether an

arbitration agreement between Plaintiff and Stripes is valid and enforceable.

Appendix Tabs 1 and 2. The temporary injunction orders enjoin the DSI

Arbitration until after the Trial Court conducts a hearing, now set for July 28,

2015, on whether the agreement is unconscionable or was fraudulently induced.

Appendix Tab 2 at ¶5.

xiii
 STATEMENT REGARDING ORAL ARGUMENT

Stripes believes that oral argument would assist in the Court’s understanding

and expeditious resolution of this interlocutory appeal. The record is somewhat

voluminous, and oral argument would give the Court an opportunity to question

counsel about the injunction proceedings in the Trial Court and the evidence

relating to the issues on this accelerated appeal. The Trial Court’s ruling raises

important questions about the effect of an employee’s undisputed signature on an

arbitration agreement and conflicts with decisions by the United States Supreme

Court, the U.S. Fifth Circuit Court of Appeals and the El Paso Court of Appeals

that an arbitrator, rather than the courts, is authorized to decide arbitrability issues

when the parties’ arbitration agreement contains an unchallenged “delegation

provision” or incorporates arbitration rules that expressly reserve arbitrability

issues for the arbitrator’s determination.

xiv
 ISSUES PRESENTED

1. Whether the Trial Court abused its discretion by enjoining Stripes and the

DSI Arbitration?

2. Whether the Trial Court abused its discretion by extending the injunction

against Stripes and the DSI Arbitration?

3. Whether Plaintiff’s applications for injunctive relief and the Trial Court’s

temporary injunction orders are void for having violated the stay imposed

by Section 171.025 of the Texas Civil Practice and Remedies Code and

formalized in the Trial Court’s December 2, 2015 Agreed Stay Order?

4. Whether Plaintiff’s applications for a temporary injunction were

properly verified and properly before the Trial Court?

5. Whether Plaintiff failed to plead and prove a cause of action?

6. Whether the temporary injunction orders improperly destroy rather than

preserve the status quo?

7. Whether Plaintiff established imminent, irreparable harm?

A. Whether the Trial Court has the right to decide arbitrability when the

Election And Arbitration Agreement and the DSI Rules provide that

the DSI arbitrator is to decide all arbitrability disputes and challenges?

B. Whether Plaintiff waived any objection to the DSI arbitrator’s

jurisdiction?
xv
8. Whether Plaintiff proved a probable right to the injunctive relief sought?

A. Whether Plaintiff proved that the courts have the right to decide

arbitrability disputes under the Election And Arbitration Agreement?

B. Whether Plaintiff proved that he has the right to trial by jury?

1. Whether Plaintiff proved the Election And Arbitration

Agreement is unenforceable?

2. Whether Plaintiff ratified the Election And Arbitration

Agreement?

3. Whether the Agreed Stay Order independently obligates

Plaintiff to arbitrate as a Rule 11 agreement?

9. Whether Stripes intentionally, unequivocally waived its arbitration rights?

xvi
 ABBREVIATIONS AND RECORD REFERENCES

“Plaintiff” refers to Plaintiff Hazem Mrayyan, Plaintiff in this lawsuit and the
Claimant in the DSI Arbitration he filed against Stripes.

“Stripes” refers to Defendant Stripes LLC, the remaining Defendant in this lawsuit
and Respondent in the DSI Arbitration.

“Sammy Mrayyan” refers to Plaintiff’s older brother, Salameh “Sammy”
Mrayyan, the Stripes store manager who presented the Election And Arbitration
Agreement to Plaintiff.

“Election And Arbitration Agreement” refers to the Election And Arbitration
Agreement governed by the FAA and accepted by Plaintiff on December 14, 2012,
and the incorporated Arbitration Procedures from the Plan’s SPD. Appendix Tab 4.

“Arbitration Procedures” refers to the Arbitration Procedures in Section IX of
the Plan’s SPD (provided to Appellant on December 14, 2012) that are expressly
incorporated into the Arbitration Agreement and that specify the DSI Rules.

“FAA” refers to the Federal Arbitration Act, 9 U.S.C. §1 et seq.

“Plan” refers to the Susser Holdings, L.L.C. Employee Injury Benefit Plan.

“SPD” refers to the Plan’s Summary Plan Description that contains, inter alia, the
Arbitration Procedures.

“DSI” refers to Dispute Solutions, Inc., the arbitration service specified in the
Election And Arbitration Agreement’s Arbitration Procedures and administering
the DSI Arbitration.

“DSI Arbitration” refers to the arbitration proceeding initiated by Plaintiff on
March 6, 2015 before DSI.

“DSI Rules” refers to DSI’s Arbitration Rules that under the Arbitration
Procedures and the Agreed Stay Order govern the DSI Arbitration.

“Arbitrator Black” refers to former President of the State Bar of Texas, Robert A.
“Bob” Black, the arbitrator selected by Plaintiff and Stripes to preside over the DSI
Arbitration.
xvii
“Merrell” refers to Merrell Lease Service, Inc. in Gregory, Texas, the owner of the
truck that ran and backed over Plaintiff while he was working at Stripes on March
27, 2013, formerly a Defendant in this lawsuit before settling with Plaintiff.

“Powell” refers to Eric Scott Powell, the Merrell employee who was operating the
pickup truck on March 27, 2013 that struck Plaintiff, formerly a Defendant in this
lawsuit before settling with Plaintiff.

“Mr. Burkett” refers to David T. Burkett, Esq., Plaintiff’s original counsel in this
lawsuit.

“Mr. Gonzales” refers to Rudy Gonzales, Jr., Plaintiff’s current lead counsel in
this lawsuit and the DSI Arbitration.

“Sarles” refers to Gary D. Sarles, Esq., Stripes’ lead counsel in this lawsuit and in
the DSI Arbitration.

“Application” refers to Stripes’ Original Answer And Application For Order For
Arbitration filed in this lawsuit on October 8, 2014.

“Agreed Stay Order” refers to the Trial Court’s December 2, 2014 order
negotiated by Mr. Gonzales and Sarles and submitted to the Trial Court for entry
without hearing or contest. Appendix Tab 5.

“Motion To Lift Stay” refers to Plaintiff’s Motion To Lift Stay Of Proceedings
And Dismiss Stripes LLC’s Order For Arbitration filed April 24, 2015.

The Clerk’s Record consists of twenty-one (21) volume. References to the Clerk’s
Record are in the format: [volume]CR[page-page].

The Supplemental Clerk’s Record consists of one (1) volume. References to the
Supplemental Clerk’s Record are in the format: SCR [page-page].

The Reporter’s Record consists of five (5) volumes. References to the Reporter’s
Record are in the format: RR[volume] [p._,l._ - p._,l._].

The Supplemental Reporter’s Record consists of one (1) volume. References to
the Supplemental Reporter’s Record are in the format: SRR [p._,l._ - p._,l._].

xviii
 STATEMENT OF FACTS

The following facts should be undisputed. See RR3 p.76,ll.14-15.

The Mrayyan Brothers

1. Plaintiff is a native of Jordan, whose wife and children still live there.

RR3 p.157,ll.1-11; DX24 at ¶2.

2. Plaintiff primarily speaks Arabic, RR3 p.10,l.6, but as the Trial Court

stated, “We all understand that [Plaintiff] speak[s] some English and . . .

understand[s] some English,” and twice instructed Plaintiff to wait for the Arabic

translation before answering questions. RR3 p.218,l.17 – p.219,l.13; RR3

p.209,ll.14-18; see RR3 p.194,l.21; p.200,l.22; p.203,ll.14-20; p.208,l.8; p.226,ll.18-

19; p.229,l.22 – p.230,l.3; p.231,l.6; p.246,ll.9-10; p.248,l.17; p.250,ll.10-11;

p.253,l.17 – p.254,l.2; p.254,l.16 (Plaintiff answering questions in English or before

the questions were translated for him into Arabic).

3. Plaintiff took courses in English in high school in Jordan, RR3

p.217,ll.4-9, and graduated from high school 1987. DX14 at p.8. Plaintiff won a

scholarship to study law in Yemen and attended school there for one or two years.

DX14 at p.8; RR3 p.221,ll.2-9. In Jordan, Plaintiff obtained a college degree in

Business Administration in 1993. RR3 p.221,ll.16-20.

4. Plaintiff worked as an accountant at a commissary in Jordan for three

years, RR3 p.222,ll.1-17, and then worked in Jordan until 2007 in accounting and

-1-
check verification for United Bank and then City Town Bank. RR3 p.222,ll.18-24.

5. Plaintiff came to the United States in 2007 and worked in Nashville,

Tennessee at a gas station, then at a gas station in Weir, Mississippi, and later at a

convenience store in Starkville, Mississippi. DX14 at p.11; RR3 p.223,ll.5-12; RR4

p.39,l.2 – p.41,l.6.

6. While living in Starkville, Plaintiff attended Mississippi State

University (“MSU”), where he studied Business Administration, taking courses

taught in English, with English textbooks and English-speaking professors. DX15;

RR3 p.177,l.23 - p.178,l.3. While at MSU, Plaintiff passed an English Composition

course. DX16; RR3 p.227,l.2 – p.228,l.19. Plaintiff passed his classes at MSU, was

never placed on academic probation, and the only reason that Plaintiff ceased

attending MSU was because Plaintiff sold his gas stations/convenience store

business in Starkville and followed his brother to Corpus Christi. RR3 p.177,l.2 –

p.178,l.3; DX26 at p.3.

7. Plaintiff managed and owned two Chevron gas stations in Starkville,

with several employees at each station. DX26 at p.3; RR3 p.178,l.22 - p.179,l.11.

Plaintiff had no language barrier problems with customers and employees while

operating his gas stations in Starkville. RR3 p.179,ll.19-24. Plaintiff and his older

brother, Salameh Mrayyan (“Sammy Mrayyan”), leased the Chevrons; Sammy

Mrayyan would explain the leases to Plaintiff, who signed them; Plaintiff does not

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remember if they had arbitration provisions. RR3 p.200,l.14 – p.202,l.4. Plaintiff

took out a bank loan on one of his Chevrons, RR3 p.202,l.15 – p.203,l.9, and sold

his Chevron business in 2012. RR3 p.203, l.21 – p.204,l.8; RR4 p.41,l.16 – p.42,l.23.

8. Plaintiff’s brother Sammy Mrayyan moved to the United States from

Jordan in 1985. RR4, p.26,l.16 – p.27,l.6. He obtained a Bachelor’s Degree in

Aerospace in 1995 from Middle Tennessee State University, obtained a Master’s

Degree in Aerospace from it in 1996, RR4 p.27,l.9 – p.28,l.15, and received a post-

Master’s education degree from it in in administration and supervision in 1997. RR4

p.30,l.17 – p.31,l.17. He moved to Florida in 2004 and worked on his Ph.D. in

computer technology at [Nova] Southeastern University. He completed the Ph.D.

course work but did not finish his dissertation. In 2005, he was awarded another

Master’s Degree, in computer technology. RR4 p.35,l.18 – p.36,l.4, p.37,ll.6-13.

9. Over the years, Sammy Mrayyan worked and owned convenience

stores in LaVergne and Nashville, Tennessee, RR4 p.31,l.22 – p.33,l.14, in Florida,

RR4 p.36,ll.3-9, and then again in Nashville. RR4 p.37,l.18 – p.38,l.14. He owned

and operated a travel agency in Jordan from 2000-2003, RR4 p.33,l.19 – p.34,l.18,

and then ran wireless AT&T stores in North Carolina until 2004. RR4 p.35,ll.2-15.

10. Sammy Mrayyan moved to Corpus Christi in 2012 to work at Stripes,

and Plaintiff moved down a little later. RR4 p.44,ll.8-23. After working as a

manager in training for Stripes, Sammy Mrayyan was promoted to general manager.

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RR4 p.45,l.16 – p.46,l.7. In 2012-2013, he was training about 30 employees for a

new store to be built. RR4 p.47,ll.2-24. He trained employees with online computer

training that an employee has to pass before getting into the field. RR4 p.47,l.25 –

p.48,l.13. As a general manager, his boss was a Stripes Area Manager, Kamal

Ghanem, a Jordanian friend of his. RR4 p.49,ll.3-14. Mr. Ghanem trained him on

the Election And Arbitration Agreement. RR3 p.79,ll.1-9.

11. Plaintiff worked as a security guard for Weiser Security at the Corpus

Christi Airport in 2012; his brother Sammy Mrayyan explained and translated the

new-hire paperwork that was in English and may have included an arbitration

provision. RR3 p.224,l.3 – p.225,l.21.

The Election And Arbitration Agreement and ERISA Plan

12. Stripes is a nonsubscriber to the optional Texas Workers’

Compensation Act and does not carry workers’ compensation insurance. PX1 at p.1;

PX2 at p.1; RR3 at p.12,ll.13-18. Stripes has a benefit plan under the Employee

Retirement Income Security Act of 1974 (“ERISA”), the Susser Holdings, LLC

Employee Injury Benefit Plan (“Plan”), that provides benefits for occupational

injuries. PX1 at p.1; PX2 at p.1; RR3 at p.13,ll.2-6.

13. By accepting the terms of an Election And Arbitration Agreement, a

Stripes employee becomes eligible for benefits from the Plan for occupational

injuries and agrees to mediate and arbitrate disputes with Stripes. PX1 at p.1; PX2

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 at pp.1-2; RR3 p.84,ll.1-13. By rejecting the terms of an Election And Arbitration

Agreement, an employee is not eligible for benefits from the Plan for occupational

injuries but does not agree to arbitrate disputes with Stripes. PX1 at p.1; PX2 at

pp.1-2; RR3 p.84,ll.1-13.

14. Stripes employees are required to sign the Election And Arbitration

Agreement, but its signature page gives the employee the option either to accept or

reject its terms. RR3 p.82,ll.3-12. Its signature page, PX2 at p.4, provides in part:

CHECK ONLY ONE OF THE FOLLOWING BOXES:
 I agree to the terms of this Agreement. OR  I reject the terms of this Agreement.

15. Because the Election And Arbitration Agreement is optional for an

employee, accepting its terms is not a condition of employment. RR3 p.83,l.2 –

p.84,l.13. In fact, an employee who accepts the terms of the Election And

Arbitration Agreement has 5 days after accepting it to revoke the acceptance. PX2

at p.3; RR3 at p.135,l.22 – p.136,l.14.

Plaintiff Accepted the Terms of the Election And Arbitration Agreement

16. On December 14, 2012, Plaintiff applied for part-time employment

with Stripes and signed an Election And Arbitration Agreement. PX2 at p.4; RR3

p.159,ll.8-23; RR3 p.14,ll.23-24.

17. Sammy Mrayyan was the Stripes manager who printed it out and

presented it to Plaintiff for signature, RR3 p.14,l.21 – p.15, l.6, and Sammy Mrayyan

already had signed and accepted the terms of his own identical Election And

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Arbitration Agreement on September 12, 2012, DX7 at p.4; RR3 p.132,l.21 –

p.133,l.7, and subsequently served his own pro se Demand for Arbitration regarding

his own asserted occupational injury at Stripes. DX8, p.133,l.8 – p.135,l.18.

18. “Sammy Mrayyan did not explain the meaning of the arbitration

agreement to [Plaintiff] before [he] signed the Election And Arbitration Agreement.

Sammy Mrayyan did not explain any of the contents of the Election And Arbitration

Agreement to [Plaintiff] before [he] signed it.” RR3 p.256,ll.3-16; DX24 at ¶6.

19. When Plaintiff signed the Election And Arbitration Agreement he did

not know anything about it, RR4 p.9,ll.3-9, and he does not remember seeing it or

anyone from Stripes explaining it to him or discussing it with him. RR3 p.160,ll.3-

11. Plaintiff’s counsel has stipulated that no one explained any part of it to Plaintiff

and that no one translated any part of it to him. RR4 p.10,ll.17-20.

20. When Plaintiff signed the Election And Arbitration Agreement he

correctly followed the instructions on its signature page, properly checking only one

of the two boxes, signing it on the signature line, printing his name, and dating his

signature. PX2 at p.4; RR3 p.81,l.14 – p.82,l.2.

21. Plaintiff signed the Election And Arbitration Agreement because he

needed to work, RR4 p.9,ll.3-9, but there was no economic duress by Stripes when

Plaintiff signed it. RR4 p.8,ll.1-16.

22. At Stripes, Plaintiff took several online computerized training courses

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in English and passed each one with between an 80% and 100% score. DX17;

DX18; RR3 p.231,p.17 – p.233,l.9.

Plaintiff’s March 27, 2013 On-the-Job Injury at Stripes

23. On March 27, 2013, Sammy Mrayyan asked Plaintiff to clean the “spill

buckets” to the underground storage tanks in the parking area of the Stripes on

Morgan in Corpus Christi. DX22 at p.3; RR3 p.11,ll.7-18.

24. A pickup truck owned by former Defendant Merrell Lease Service, Inc.

(“Merrell”) and driven by former Defendant Eric Powell (“Powell”) stopped at the

Stripes to use its air compressor near the spill buckets where Plaintiff was working.

DX22 at p.3; RR3 p.11,ll.19-25; PX6 at Exhibit H (photos).

25. Powell asked Plaintiff for change and made eye contact with him

several times before airing one of the truck’s tires; Powell’s passenger also spoke to

Plaintiff. DX22 at p.3. Powell then pulled the truck forward, running over Plaintiff,

and then backed up the truck, again running over him. RR3 p.12,ll.1-6.

Payments by the Plan

26. In reliance on Plaintiff’s acceptance of the Election And Arbitration

Agreement, the Plan began paying hundreds of thousands of dollars of benefits to

Plaintiff and to his medical providers for the care of the injuries that he sustained on

March 27, 2013. DX20; DX21; RR3 p.92,ll.3-14.

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 27. In reliance on Plaintiff’s acceptance of the Election And Arbitration

Agreement, the Plan’s Total Benefit Limit was increased from $250,000 to $450,000

to cover Plaintiff’s on-going medical expenses. RR3 p.94,l.15 – p.95,l.12.

28. Plaintiff knew the Plan paid the official billing statements from the

hospitals that he attended and for the treatment that he received. RR3 p.235,l.11 –

p.236,l.11; DX19 at pp.9-10; DX20. Plaintiff also knew he was receiving a net

weekly check from the Plan. RR3 p.236,l.12 – p.237,l.24; DX20 at second page.

29. On October 3, 2013, Plaintiff hired David Burkett, Esq. (“Mr.

Burkett”) to represent him on a contingent-fee basis; the fee agreement was in

English; Sammy Mrayyan translated and explained its terms to Plaintiff. RR3

p.207,l.12 – p.210,l.16; DX27.

Plaintiff’s Counsel’s Knowledge of the Plan’s Payments

30. In October of 2013, Respondent’s counsel Gary Sarles (“Sarles”)

discussed the Plan’s payment of benefits with Mr. Burkett, RR3 p.91,l.12 – p.92,l.14,

explained that the Plan had paid hundreds of thousands of dollars of benefits in

reliance on Plaintiff’s acceptance of the Election And Arbitration Agreement, RR3

p.92,ll6-14, and then sent Mr. Burkett a November 6, 2013 letter enclosing the

payment registers showing detailed information on each Plan Disability Benefits

check to Plaintiff and Plan Medical Benefits check to his medical providers. DX20.

-8-
 31. Although Stripes was not a party to this lawsuit at the time, see 1CR10-

16, on December 18, 2013, Mr. Burkett used Sarles’ November 6, 2013 letter and

its itemization of payments in Plaintiff’s answers to Merrell’s first set of

interrogatories. DX19 at pp.9-10. At that time, the total amount in Medical Benefits

paid by the Plan was $397,524.64. DX19 at p.10; DX20 at p.4.

32. Plaintiff verified those interrogatory answers in English on December

18, 2013. DX19 at p.14 (“I have read the foregoing Answers to Interrogatories

designed to be filed in the above styled and numbered cause, have personal

knowledge of the facts and allegations contained therein, and each and every fact

and allegation contained therein is true and correct.”). Plaintiff subsequently

verified his supplemental interrogatory answers in English. DX22 at p.5 (same).

33. While Plaintiff was represented by Mr. Burkett, the Plan continued

paying thousands of dollars of benefits to Plaintiff with Mr. Burkett’s knowledge.

RR3 p.92,l.15 – p.94,l.2, p.136,ll.17-24; DX9; DX20; DX21. The Election And

Arbitration Agreement provided to Mr. Burkett expressly states that “I agree that

each and every time that I receive Plan benefits, or have Plan benefits paid to a

medical provider on my behalf, I ratify and reaffirm this Agreement the same as if I

had signed this Agreement again on the date the benefits were paid.” PX2 at p.3 of

4 (emphasis in original); RR3 at p.93,ll.5-22.

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 34. Plaintiff has never repaid the more than $450,000 in Plan benefits paid

in reliance on Plaintiff’s acceptance of the terms of the Plan. RR3 p.94,ll.3-14,

p.95,l.19 – p.96,l.10, p.138,l.18 – p.140,l.10.

Stripes Added to this Lawsuit

35. On July 16, 2014, Merrell filed a Third Party Petition against Stripes in

this lawsuit, 1CR286-292, and on July 28, 2014, Plaintiff filed Plaintiff’s First

Amended Petition in this lawsuit, adding Stripes as a Defendant. 1CR308-318.

36. On August 18, 2014, Plaintiff gave his deposition in this case in English

and without the use of an interpreter, because Mr. Burkett represented to the defense

attorneys that Plaintiff could give the deposition in English without an interpreter.

RR3 p.90,l.11 – p.91,l.8. Neither Mr. Burkett nor Plaintiff made any changes to

Plaintiff’s deposition transcript testimony. DX23.

37. On October 8, 2014, Stripes filed its Original Answer And Application

For Order For Arbitration (“Application”), with Plaintiff’s signed Election And

Arbitration Agreement and the pertinent provisions of the Plan’s Summary Plan

Description (“SPD”) attached as Exhibits 1 and 2. 1CR523-535; DX1; RR3

p.98,l.11 – p.99,l.10. The Application asserted that the filing or “making” of the

Application automatically stayed all claims against Stripes pursuant to Section

171.025(a) of the Civil Practice and Remedies Code. 1CR523-524; DX1 at p.2; RR3

p.99,ll.11-19.

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The December 2, 2014 Agreed Stay Order

38. After Plaintiff’s lead counsel, Rudy Gonzalez (“Mr. Gonzales”),

appeared in this lawsuit on September 25, 2014, 1CR516-517, Sarles and he

discussed the Election And Arbitration Agreement and staying all of the claims

against Stripes and agreed to an Order Granting Stripes LLC’s Application For Order

For Arbitration (“Agreed Stay Order”), 1CR570-571; DX2; RR3 p.99,l.20 –

p.101,l.15, and agreed to stay the proceedings in this lawsuit against Stripes, to the

language of the Agreed Stay Order, and to resolve any disputes between Plaintiff

and Stripes in binding arbitration before Dispute Solutions, Inc. (“DSI”). RR3

p.104,ll.5-22, p.105,ll.15-19.

39. Mr. Gonzales never objected to the enforceability of the Election And

Arbitration Agreement or asserted any defense to its enforceability in his discussions

with Sarles during the negotiations regarding the Agreed Stay Order. RR3 p.106,l.16

– p.107,l.3.

40. The Agreed Stay Order states that it is “Agreed As To Form Only,” not

“Approved As To Form Only.” 1CR571; DX2 at p.2; RR3 p.107,ll.8-14. Mr.

Gonzales’ partner signed the Agreed Stay Order for Plaintiff and had it filed with

and signed by the Trial Court. 1CR571; DX2 at p.2; RR3 p.107,ll.15-21. Regarding

the Agreed Stay Order, Mr. Gonzales admitted during his opening statement that

“we did not contest it at that time.” RR3 p.17,ll.15-16.

- 11 -
 41. The Agreed Stay Order was signed by the Trial Court on December 2,

2014. 1CR570; DX2 at p.1. It provides:

Defendant Stripes LLC having filed with its Original Answer an
Application for Order for Arbitration requesting a formal written order
enforcing the automatic stay imposed by Section 171.025(a) of the Civil
Practice and Remedies Code on any further proceedings against Stripes LLC
in this lawsuit, the Court is of the opinion that the statutory stay should be
formalized by this Order. It is, therefore,
ORDERED that Plaintiff Hazem Mrayyan’s claims and causes of action
and all further proceedings against Defendant Stripes LLC be, and they hereby
are, stayed pending resolution of these two parties’ claims, causes of action and
defenses in binding arbitration before Dispute Solutions, Inc. (“DSI”) in
accordance with their Election And Arbitration Agreement and the DSI
Arbitration Rules.

42. The Agreed Stay Order was not prepared to memorialize any oral ruling

by the Trial Court on Stripes’ Application; no hearing ever took place on Stripes’

Application, because Mr. Gonzales and Sarles agreed to the Agreed Stay Order and

submitted it to the Trial Court for entry without any hearing on the Application ever

taking place; Sarles considered the Agreed Stay Order an agreed order or at least a

Rule 11 agreement; Stripes relied on the Agreed Stay Order by not setting the

Application for hearing before the Trial Court and by not participating in discovery.

RR3 p.107,l.4 – p.108,l.13, p.124,l.15 – p.125,l.12.

Plaintiff’s March 6 and 19, 2015 Demands for Arbitration

43. On March 6, 2015, Plaintiff’s counsel sent “Hazem Mrayyan’s Demand

for Arbitration” to DSI and to Stripes at the address in the Election And Arbitration

Agreement. DX4; PX2 at pp.18-19; RR3 at p.113,ll.5-12. By March 6, 2015, Mr.

- 12 -
Gonzales had been representing Plaintiff for six months and Mr. Burkett had been

representing Plaintiff for 18 months, Plaintiff’s expert reports had already been

served, Plaintiff’s experts’ life care plan and psychologists’ reports were in their

possession, Dr. Pollock’s neuropsychologist report had been provided, and both

Plaintiff and Sammy Mrayyan had given their depositions. RR3 p.109,l.9 –

p.111,l.21.

44. The March 6, 2015 Demand for Arbitration seeks no relief other than

damages, is unconditional, contains no reservation of Plaintiff’s rights, asserts no

objection or defense to the arbitrator’s jurisdiction, and says nothing about being

filed to preserve the statute of limitations. DX4; RR3 p.112,l.6 – p.113,l.12.

45. After the March 6, 2015 Demand for Arbitration was sent to Stripes,

Mr. Hunter, co-counsel with Mr. Gonzales, called Sarles to ask whether the March

6, 2015 Demand for Arbitration was sufficient to invoke arbitration, and Sarles told

him that it did not appear that it had been filed with DSI. RR3 p.113,ll.13-23.

46. Plaintiff’s counsel then electronically filed with DSI on March 19, 2015

a second Demand for Arbitration at DSI’s website address provided by Sarles. DX5;

RR3 p.113,l.24 – p.114,l.5. In the “Relief sought by the Employee” section of the

March 19th Demand, Plaintiff only seeks damages. DX5 at pp.3-4.

47. The March 19, 2015 Demand for Arbitration is unconditional, contains

no reservation of Plaintiff’s rights, asserts no objection or defense to the arbitrator’s

- 13 -
jurisdiction, says nothing about being filed to preserve the statute of limitations, and

makes no contention that Plaintiff is not bound by the Election And Arbitration

Agreement because he could not understand English, and Mr. Hunter made no such

assertions in his conversation with Sarles prior to its filing with DSI. DX5; RR3

p.114,l.6 – p.115,l.23.

48. The Agreed Stay Order was in place when Plaintiff’s March 6 and 19,

2015 Demands for Arbitration were filed with DSI, and Plaintiff filed nothing with

the Trial Court or DSI challenging the enforceability of the Election And Arbitration

Agreement or DSI’s jurisdiction. RR3 p.115,l.24 – p.116,l.21.

The Plan’s Plea in Intervention

49. After the Trial Court’s December 2, 2014 entry of the Agreed Stay

Order, Stripes did not participate in this lawsuit. RR3 p.120,l.23 – p.121,l.4.

50. Because of concern that Plaintiff’s counsel would not honor the Plan’s

subrogation rights regarding the $450,000 in Plan benefits paid to and for Plaintiff,

RR3 p.118,ll.2-12, on December 29, 2014, the Plan filed a plea in intervention

pursuant to Rule 60. 1CR572-579; DX6; RR3 p.117,ll.5-12. The Plan did not join

this lawsuit as an additional plaintiff under Rule 40. RR3 p.117,l.20 - p.118,l.1. No

objection was filed to strike the Plan’s intervention. RR3 p.117,ll.13-16.

51. Sarles and his firm were representing the Plan’s interests after

December 29, 2014 in this lawsuit, which were adverse to Plaintiff’s interests

- 14 -
regarding the $450,000 in Plan benefits’ recovery and congruent with Plaintiff’s

interests in recovering at least that amount from Defendants Merrell and Powell.

RR3 p.118,l.23 – p.119,l.21.

The Plan’s Questioning of Dr. Snook

52. On March 30, 2015, Sarles appeared as counsel for the Intervenor at the

deposition of Plaintiff’s life care plan expert, Dr. Snook, PX5 at p.2, and after

expressly explaining to Dr. Snook that Sarles represented the Plan, PX5 at p.164,

asked Dr. Snook a series of questions about the life care plan in response to which

he admitted that if Plaintiff underwent the surgeries and physical therapy in the plan,

Plaintiff should be able to utilize the life care plan’s six months of occupational

therapy and then return to work. PX5 at pp.204-205; RR3 p.148,l.15 – p.149,l.15.

53. Shortly after that critical admission, Plaintiff’s counsel objected to

Sarles’ questioning and instructed Dr. Snook not to answer any more of his questions

during the deposition. PX5 at pp.207-215; p.146,ll.22-24.

54. Sarles’ questioning of Dr. Snook furthered the Plan’s interests by

helping move Plaintiff’s settlement demands on the Merrell’s and Powell’s liability

insurer from $15 million to within its $6 million policy limit, resulting in a settlement

of Plaintiff’s claims against them for the $6 million policy limit and providing

sufficient funds for the payment of the Plan’s $450,000 subrogation lien. RR3

p.122,l.24 – p.124,l.14; p.150,l.9 – p.153,l.4.

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 55. Despite Plaintiff’s $6,000,000 settlement with Merrell and Powell

including amounts for Plaintiff’s past medical care and lost wages, Plaintiff has not

reimbursed the Plan, as required by its terms, PX1 at pp.22-23, for the more than

$450,000 in Plan benefits paid to him. RR3 p.94,ll.3-14, p.95,l.19 – p.96,l.10,

p.126,l.5 – p.127,l.6, p.138,l.18 – p.140,l.10.

56. On April 24, 2015, Plaintiff filed in the Trial Court Plaintiff’s Motion

To Lift Stay Of Proceedings And Dismiss Stripes LLC’s Order For Arbitration

(“Motion To Lift Stay”). 20CR4095-4208.

The DSI Arbitration

57. On April 27, 2015, DSI sent a strike list to Mr. Gonzales and Sarles for

the selection of the arbitrator in the DSI arbitration (“DSI Arbitration”) that Mr.

Gonzales had demanded on March 6 and 19, 2015. 20CR4225.

58. On April 30, 2015, Plaintiff filed in the Trial Court Plaintiff’s

Application For Temporary Restraining Order For Emergency Stay Of Arbitration,

requesting the Trial Court to enjoin DSI from proceeding with the selection of the

arbitrator for the DSI Arbitration, and asserting that Plaintiff would suffer irreparable

harm if the arbitrator-selection process was not halted. 20CR4217-4234.

59. Rather than setting that Application for hearing before the Trial Court,

Plaintiff’s counsel submitted its strike list to DSI, resulting in the appointment on

May 4, 2015 of Plaintiff’s first choice, Robert “Bob” Black in Beaumont, a former

- 16 -
President of the State Bar (“Arbitrator Black”). CR4756-4760; RR3 p.20,ll.9-17;

see RR3 p.30,l.24 – p.31,l.11. Plaintiff has never filed any objection to the

appointment of Arbitrator Black. PX4d; CR3 p.20,ll18-24; see CR3 p.31,ll.12-18.

60. On April 30, 2015, Stripes filed in the DSI Arbitration Respondents’

Original Answer And Counterclaims, with Stripes asserting a counterclaim against

Plaintiff for breach of the Election And Arbitration Agreement and the Plan asserting

a counterclaim for recovery of its more than $450,000 that Plaintiff’s counsel failed

to remit to the Plan after Plaintiff’s $6 million settlement with Merrell and Powell.

20CR4613-4621; DX10; RR3 p.136,l.25 – p.137,l.6. The Plan non-suited its Plea

in Intervention in the Trial Court the same day. 20CR4237-4238.

61. On May 5, 2015, the Respondents in the DSI Arbitration filed

Respondents’ Motion To Determine The Enforceability Of The Parties’ Election

And Arbitration Agreement, 20CR4622-4629, and on May 8, 2015, Arbitrator Black

set a briefing schedule on it. PX4.

Plaintiff’s Applications to Enjoin the DSI Arbitration

62. On May 8, 2015, Plaintiff filed in the Trial Court Plaintiff’s First

Amended Application For Ex Parte Temporary Restraining Order For Emergency

Stay Of Arbitration And Application For Temporary Injunction, 20CR4605-4633,

which Nueces County Court at Law No. 4 Judge Mark Woerner granted on May 8,

2015. 20CR4603-4604. Three days later, on May 11, 2015, Plaintiff filed the

- 17 -
verification by attorney Todd Hunter, Jr. to that First Amended Application, which

had already been granted on May 8, 2015. 20CR4634.

63. On May 19, 2015, the Trial Court extended the Temporary Restraining

Order, 20CR5157-5158, without any motion filed by Plaintiff and without any

showing of good cause or consent by Stripes as required by Rule 680. RR2 pp.4-9.

64. At midnight on Memorial Day, May 25, 2015, Plaintiff filed Plaintiff’s

Verified Fifth Amended Petition. 21CR5174-5191. Early the next morning,

Plaintiff filed Plaintiff’s Reply To Defendant Stripes LLC’s Response To Plaintiff’s

Application For Temporary Injunction. 21CR5192-5608.

65. At 9:00 a.m. on May 26, 2015, 20CR5157, the Trial Court started a

temporary injunction hearing that concluded on May 27, 2015. RR3; RR4.

66. The Trial Court’s May 27, 2015 Order Granting Plaintiff’s Request For

Temporary Injunction recites that there “is evidence that harm is imminent to

Plaintiff, and if the Court does not issue the temporary injunction, Plaintiff will be

irreparably injured because Plaintiff will be subject to arbitration proceedings,

motions, and hearings that will deprive him of his right to have this Court decide

arbitrability and his right to a jury trial.” 21CR5611-5612.

Stripes’ Filings in this Court

67. On May 28, 2015, Stripes filed under Section 51.016 of the Civil

Practice and Remedies Code its notice of appeal of the May 27, 2015 temporary

- 18 -
injunction order. 21CR5720-5721.

68. On May 30, 2015, Stripes moved this Court to prevent the Trial Court

from proceeding with a June 4, 2015 hearing on Plaintiff’s Motion To Lift Stay,

which this Court granted on June 1, 2015. SCR10-11.

69. On June 4, 2015, this Court ordered the June 1 stay lifted, SCR12-13,

and on June 5 declined to reconsider its order. Because the Trial Court had not

conducted the hearing on Plaintiff’s Motion To Lift Stay on June 4 and the May 27

temporary injunction order stated that it expired on June 4, Plaintiff on June 4 filed

an Expedited Motion To Modify Temporary Injunction Order, SCR4-13, that

Visiting Judge Martha Huerta granted over Stripes’ objections on June 8, 2015,

SCR18-20, SRR pp.1-11, extending the temporary injunction order until July 28,

2014, SCR19, when Plaintiff’s Motion To Lift Stay is now set for hearing in the

Trial Court. SCR16-17.

70. On June 8, 2015, Stripes filed a notice of appeal of the June 8, 2015

temporary injunction order. SCR21-22.

- 19 -
 SUMMARY OF ARGUMENT

Stripes’ October 8, 2014 filing of its Original Answer And Application For

Order For Arbitration (“Application”) under Texas Civil Practice and Remedies

Code §171.025 mandatorily stayed this lawsuit as to Stripes. The Trial Court’s

December 2, 2014 Agreed Stay Order formalized the automatic, mandatory,

statutory stay. Pleadings and motions filed during the pendency of a stay violate it

and are void. While a mandatory stay is in effect, a court has no discretion to refuse

to recognize it, and all court actions in derogation of the stay are also void. Here,

rather than purporting to lift the stay, the May 27 and June 8, 2015 temporary

injunction orders acknowledge the continued efficacy of the stay by enjoining the

DSI Arbitration only until Plaintiff’s Motion To Lift Stay is heard by the Trial Court,

set for July 28, 2015. The Trial Court’s orders are void and should be vacated.

Texas Rule of Civil Procedure 682 requires that a plaintiff verify his

application for injunctive relief and show that he has personal knowledge of the truth

of its allegations. Plaintiff’s May 8, 2015 First Amended Application For Ex Parte

Temporary Restraining Order For Emergency Stay Of Arbitration And Application

For Temporary Injunction (“First Amended Application”) was verified only by

one of Plaintiff’s attorneys, with no personal knowledge of Plaintiff’s ability to read

English in December of 2012 when he undisputedly signed the Election And

Arbitration Agreement. Although verified by Plaintiff himself, Plaintiff’s Verified

- 20 -
Fifth Amended Petition was filed and served just hours before the temporary

injunction hearing in violation of Rule 21. Without a properly verified application

before it, the Trial Court abused its discretion in entering a temporary injunction.

Neither Plaintiff’s First Amended Application nor his Verified Fifth Amended

Petition pleads a cause of action for injunctive relief against Stripes. Plaintiff’s only

purported legal grounds for injunctive relief were (1) procedural unconscionability,

(2) fraudulent inducement, and (3) concealment and misrepresentation. First, Stripes

explained before the temporary injunction hearing began that unconscionability is a

defense, not a cause of action, a point recently reiterated in Royston, Rayzor, Vickery

& Williams, LLP v. Lopez, 2015 Tex. LEXIS 622 at 9 (Tex. June 26, 2015). Second,

despite Rule 683’s requirement that a temporary injunction set forth a “detailed

explanation of the reason for the injunction’s issuance,” the Trial Court made no

finding or mention of fraudulent inducement, concealment or misrepresentation.

Third, although Plaintiff’s brother Sammy Mrayyan brought the Election And

Arbitration Agreement to Plaintiff to sign, Plaintiff expressly admitted in his

affidavit that “Sammy Mrayyan did not explain the meaning of the arbitration

agreement to me before I signed the Election And Arbitration Agreement. Sammy

Mrayyan did not explain any of the contents of the Election And Arbitration

Agreement to me before I signed it.” The evidence shows that no one from Stripes

told Plaintiff anything about the Election And Arbitration Agreement that was false,

- 21 -
and there was no evidence that Plaintiff relied on anything said to him. In the

absence of pleading and proof of a cause of action for injunctive relief, the temporary

injunction order must be reversed.

The purpose of a temporary injunction is to preserve the status quo, “the last,

actual, peaceable, non-contested status which preceded the pending controversy.”

In re Newton, 146 S.W.3d 648, 651 (Tex. 2004). A temporary injunction that

destroys rather than preserves the status quo is an abuse of discretion and must be

dissolved. Ballenger v. Ballenger, 668 S.W.2d 467, 469-70 (Tex. App.—Corpus

Christi 1984, writ dism’d w.o.j.). As detailed in Paragraphs 38-42 of the Statement

Of Facts above, counsel for the Parties agreed to the Agreed Stay Order and, in lieu

of a hearing on Stripes’ Application, Plaintiff’s counsel had it entered by the Trial

Court on December 2, 2014, staying all further proceedings in this lawsuit against

Stripes. Plaintiff’s counsel then voluntarily, knowingly and unconditionally initiated

the DSI Arbitration on March 6, 2015, without asserting any challenge or defense to

the DSI arbitrator’s jurisdiction. As a result, “the last, actual, peaceable, non-

contested status which preceded the pending controversy,” was where all

proceedings against Stripes in this lawsuit were stayed and Plaintiff and Stripes were

arbitrating their claims and defense in the DSI Arbitration before Arbitrator Black.

The Trial Court’s temporary injunction prohibiting the DSI Arbitration from going

forward destroys rather than preserves the status quo and must be vacated.

- 22 -
 Plaintiff will not be irreparably harmed by having Arbitrator Black in the DSI

Arbitration decide whether the Election And Arbitration Agreement is enforceable.

When “clear and unmistakable evidence” exists that the parties intended for an

arbitrator to decide “gateway” questions of arbitrability like enforceability and

validity, such matters are for determination by the arbitrator, not the courts. The

Election And Arbitration Agreement expressly covers “any and all” “claims

challenging the existence, validity or enforceability of this Agreement (in whole

or in part) or challenging the applicability of this Agreement to a particular

dispute or claim.” PX2 at p.2 (emphasis in original). Such “delegation provisions”

are “clear and unmistakable evidence” of the intent to arbitrate enforceability and

validity and are fully enforceable under the FAA. See Rent-A-Center, West, Inc. v.

Jackson, 561 U.S. 63 (2010). In addition, Texas courts hold that when parties

explicitly incorporate rules that empower an arbitrator to decide such issues, the

incorporation is also “clear and unmistakable evidence” of the intent to delegate such

issues to the arbitrator. Plaintiff and Stripes undisputedly agreed to arbitrate under

the DSI Rules, DSI Rule 5(a) grants Arbitrator Black the authority to rule on any

objections to the enforceability of the Election And Arbitration Agreement, and

under DSI Rule 5(c), Plaintiff has waived any challenge to Arbitrator Black’s

jurisdiction. Having agreed to arbitrate arbitrability disputes, Plaintiff will not be

deprived of a jury right or access to the courts, because he already waived them. D.

- 23 -
Wilson Constr. Co. v. McAllen Ind. Sch. Dist., 848 S.W.2d 226, 231 (Tex. App.—

Corpus Christi 1992, writ dism’d w.o.j.); In re Burton, McCumber & Cortez, LLP,

115 S.W.3d 235, 237 (Tex. App.—Corpus Christi 2003, orig. proceeding). The

temporary injunction cannot preserve rights that Plaintiff already waived.

Plaintiff also failed to establish a probable right to the injunctive relief sought.

As shown, Plaintiff has no right to have the courts decide arbitrability disputes.

Plaintiff also has no right to a jury trial simply because he asserts that he did not

understand the Election And Arbitration Agreement when he undisputedly signed it.

In the absence of fraud, Texas law holds that one who signs a contract knows and

understands its contents and is bound by its terms, Lopez, 2015 Tex. LEXIS 622 at

*8, that illiteracy or the inability to read English does not relieve him of his

agreement, that if he is unable to read the contract, he must have it read to him, that

an arbitration agreement cannot be avoided by his assertion that he did not

subjectively understand it, and that the other party has no obligation to explain the

contract to him because he is illiterate. Moreover, by knowingly accepting and

retaining over $450,000 in Plan benefits paid in reliance on the Election And

Arbitration Agreement, much of it paid while Plaintiff was represented by counsel,

Plaintiff has ratified it and is estopped to deny its enforceability. Regardless of the

Election And Arbitration Agreement, the Agreed Stay Order, as a Rule 11

agreement, independently obligates Plaintiff to arbitrate his claims against Stripes.

- 24 -
 The Plan, as intervenor, did not waive Stripes’ arbitration rights. The Plan’s

questioning of Dr. Snook was in furtherance of the Plan’s interest in achieving a

settlement of Plaintiff’s claims against Merrell and Powell, which it accomplished.

The temporary injunction orders do not find waiver, and Plaintiff failed to bear his

heavy burden of showing an intentional, unequivocal waiver of Stripes’ arbitration

rights.

- 25 -
 ARGUMENT

I. PLAINTIFF’S APPLICATIONS FOR INJUNCTIVE RELIEF AND
THE ORDERS GRANTING IT ARE ALL VOID.

On October 8, 2014, when Stripes filed or “made” its Original Answer And

Application For Order For Arbitration (“Application”) under Texas Civil Practice

and Remedies Code §171.025, this lawsuit was mandatorily stayed as to Stripes. See

In re Nationwide Credit, Inc., 2009 Tex. App. LEXIS 2243 at 12 (Tex. App.—

Corpus Christi 2009, orig. proceeding)(mem. op.)(‘the trial court is compelled by

statute to stay any proceeding that involves ‘an issue subject to arbitration’ if a party

seeks an order to arbitrate”); In re Pediatrix Medical Services, Inc., 2005 Tex. App.

LEXIS 5861 at 2 (Tex. App.—Dallas 2005, orig. proceeding)(mem. op.)(“The civil

practice and remedies code provides that the trial court shall stay a proceeding that

involves an issue subject to arbitration if an application for an arbitration order is

made.”). The Trial Court’s December 2, 2014 Agreed Stay Order explains that it is

formalizing the automatic, mandatory stay imposed by Section 171.025. 1CR570.

A pleading or motion filed during the pendency of a stay violates it and is

void. See, e.g., In re Helena Chem. Co., 286 S.W.3d 492, 496-97 (Tex. App.—

Corpus Christi 2009, orig. proceeding)(collecting cases); Nautical Landings Marina,

Inc. v. First Nat’l Bank, 791 S.W.2d 293, 296 (Tex. App.—Corpus Christi 1990,

writ denied)(collecting cases). While a mandatory stay is in effect, a court has no

discretion to refuse to recognize it, and all court actions in derogation of the stay are

- 26 -
also void. In re Consolidated Freightways, 75 S.W.3d 147, 149 (Tex. App.—San

Antonio 2002, orig. proceeding)(Insurance Code stay); Star-Tel, Inc. v.

Nacogdoches Telecommunications, Inc., 755 S.W.2d 146, 150 (Tex. App.—

Houston [1st Dist.] 1988, no writ)(bankruptcy stay); see also Hood v. Amarillo Nat’l

Bank, 815 S.W.2d 545, 547 (Tex. 1991)(recognizing that a trial court cannot enter a

judgment in violation of a bankruptcy stay).

Here, the temporary injunction orders do not lift the stay. See 21CR5615-

5616; SCR18-20. Instead, those orders expressly acknowledge the continued

efficacy of the stay by purporting to enjoin the DSI Arbitration only until Plaintiff’s

Motion To Lift Stay—the same stay—is heard by the Trial Court, now set for July

28, 2015. See SCR18-19; SCR16-17; 21CR5615-5616; 20CR4210-4211. As a

result of the stay, all of Plaintiff’s applications for temporary injunctive relief against

Stripes, as well as the motion to extend the temporary injunction order, SRR p.7,l.19

– p.8,l.4, were void when filed without first having the stay lifted.

The Trial Court’s void temporary injunction orders granting and extending

injunctive relief on Plaintiff’s void pleadings should be vacated by this Court without

further consideration or delay. See Consolidated Freightways, 75 S.W.3d at 154

(granting mandamus and vacating all trial court orders issued during Insurance Code

stay).

- 27 -
II. IN ADDITION TO BEING VOID, PLAINTIFF’S FIRST AMENDED
APPLICATION WAS ALSO NOT PROPERLY VERIFIED, AND
PLAINTIFF’S VERIFIED FIFTH AMENDED PETITION WAS NOT
PROPERLY BEFORE THE TRIAL COURT.

Texas Rule of Civil Procedure 682 provides that “[n]o writ of injunction shall

be granted unless the applicant therefor shall present his petition to the judge verified

by his affidavit and containing a plain and intelligible statement of the grounds for

such relief.” (emphasis added). Rule 682’s requirements are mandatory. Williams

v. Bagley, 875 S.W.2d 808, 810 (Tex. App.—Beaumont 1994, no writ). The phrase

“verified by his affidavit” means “proved to be true or correct.” In re MetroPCS

Communs., Inc., 391 S.W.3d 329, 337 (Tex. App.—Dallas 2013, orig. proceeding)

(citing City of Arlington v. Dallas-Fort Worth Safety Coach Co., 270 S.W. 1094,

1095 (Tex. Civ. App.—Fort Worth 1925, no writ)). “[T]he affidavit must show to

have been made on the personal knowledge of the affiant as to the truth of the

allegations verified.” Id. The application “must plead affirmatively the necessary

facts and not legal conclusions” and “must be direct, certain and particular.” Texas

State Board of Medical Examiners v. McKinney, 315 S.W.2d 387, 390 (Tex. Civ.

App.—Waco 1958, no writ). Although Texas Rule of Civil Procedure 14 permits

an attorney to verify pleadings, an attorney may only verify a pleading “where he

has knowledge of the facts,” and Rule 14 does not authorize an attorney “to verify

based merely on his status as counsel.” Cantu v. Holiday Inns, 910 S.W.2d 113, 116

(Tex. App.—Corpus Christi 1995, writ denied).

- 28 -
 Plaintiff’s May 8, 2015 First Amended Application For Ex Parte Temporary

Restraining Order For Emergency Stay Of Arbitration And Application For

Temporary Injunction, 20CR4605-4633 (“First Amended Application”), was not

“verified by his affidavit.” Instead, three days after the temporary restraining order

was entered by Judge Woerner on May 8, 2015, Plaintiff filed on May 11, 2015 the

verification by attorney Todd A. Hunter, Jr. of the already-granted First Amended

Application. 20CR4634.

In addition to this after-the-fact verification problem for the May 8 temporary

restraining order, the May 11 verification also cannot support the May 27 and June

8 temporary injunction orders, because the verification was not made by Plaintiff,

but by his attorney, Mr. Hunter. The verification is defective because it does not and

cannot demonstrate how it was “made on the personal knowledge of the affiant.”

The crux of Plaintiff’s First Amended Application, and the only purported basis for

the injunction entered on May 27 and extended on June 8, are the allegations in

Paragraph 7. Paragraph 7’s allegations cannot possibly be verified by anyone other

than Plaintiff: “While Plaintiff can read, write, and speak Arabic, his ability to read,

write, and speak English is extremely limited, and with regard to reading in English,

his ability is practically non-existent.” 20CR4606. Paragraph 7 further asserts that

“Plaintiff is unable to read the English language, and must have someone translate

anything written in said language to Arabic in order to comprehend and understand

- 29 -
what is written,” 20CR4606, and it further asserts that “[t]his is true now and was

true in December 2012, when he was given the Arbitration Agreement and directed

to sign it.” 20CR4607 (emphasis added).

Lawyer Hunter’s verification fails to explain how he has personal knowledge

of Plaintiff’s English skills back in December of 2012, when Plaintiff signed the

Election And Arbitration Agreement. Mr. Hunter did not meet and begin

representing Plaintiff until sometime after September 25, 2014. 1CR516-517.

Moreover, even Plaintiff’s retained neuropsychologist expert, Dr. Pollock, testified

that, after conducting hours of interviews and testing on Plaintiff in January of 2015,

“I don’t have an opinion about whether [Plaintiff] understood [the Election And

Arbitration Agreement] or not at the time he signed it” in December of 2012. “That’s

something that I don’t have any knowledge about his functioning at that point in

time.” RR3 p.183,ll.21-25 (emphasis added). When Plaintiff’s own counsel

inquired during the temporary injunction hearing whether Dr. Pollock had an opinion

about whether his report would be consistent with Plaintiff allegedly having had

difficulty understanding at Mississippi State University, Dr. Pollock answered that

“I can’t say that it would be consistent with my report,” and that there was nothing

“that I did with [Plaintiff] that would indicate that he was having trouble with

English; but at the same time, sometimes patients don’t tell you the – the whole

picture. So I don’t know whether his English was proficient enough to be

- 30 -
understanding college material or not, but I certainly know that he was

functioning at a higher cognitive level before this accident” on March 27, 2013.

RR3 at p.187,l.16 – p.188,l.6 (emphasis added). Mr. Hunter’s verification is fatally

defective, as Stripes pointed out on May 18, 2015, well before the temporary

injunction hearing began. 20CR4640.

In a last-minute effort to fix this fatal defect, Plaintiff’s Verified Fifth

Amended Petition was verified by Plaintiff himself. 21CR5182. However,

Plaintiff’s Verified Fifth Amended Petition was not filed until almost midnight on

Memorial Day, May 25, just hours before the temporary injunction hearing began,

and in violation of the December 2, 2014 Agreed Stay Order, after the agreed

scheduling order’s deadline for amending pleadings, and in violation of Texas Rule

of Civil Procedure 21. Rule 21 requires every pleading, plea, motion or application

for an order to be filed and served at least three days before a hearing on it, unless

otherwise provided by the Rules or shortened by the court. See Approximately

$1,589.00 v. State, 230 S.W.3d 871, 873-74 (Tex. App.—Houston [14th Dist.] 2007,

no pet.). Plaintiff’s untimely Verified Fifth Amended Petition cannot support the

Trial Court’s temporary injunction.

The Trial Court’s temporary injunction should be vacated by this Court

without further consideration or delay.

- 31 -
III. PLAINTIFF FAILED TO PLEAD AND PROVE A CAUSE OF ACTION.

Regardless whether Plaintiff’s applications for temporary injunction are void,

improperly verified and untimely filed, they fail to establish the elements necessary

for the issuance of a temporary injunction. “A temporary injunction is an

extraordinary remedy and does not issue as a matter of right.” Butnaru v. Ford

Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)(cited in Plaintiff’s applications). As a

result, to obtain a temporary injunction under Texas law, an applicant “must plead

and prove three specific elements: (1) a cause of action against the defendant; (2) a

probable right to the relief sought; and (3) a probable, imminent, and irreparable

injury in the interim.”

Both Plaintiff’s May 8 First Amended Application and Plaintiff’s May 25

Verified Fifth Amended Petition failed to affirmatively plead the necessary facts to

set forth any cause of action against Stripes for injunctive relief. Plaintiff’s First

Amended Application did not even purport to set forth a new cause of action against

Stripes, see 20CR4605-4610, and it only made a cursory statement in Paragraph 18

that the Election And Arbitration Agreement is unconscionable. 20CR4610.

However, as Stripes pointed out in its Response on May 18, 2015—well in advance

of the temporary injunction hearing—unconscionability is a defense to an arbitration

agreement, not a cause of action. 20CR4641 (citing In re FirstMerit Bank, N.A., 52

- 32 -
S.W.3d 749, 757 (Tex. 2001)(“plaintiffs are free to pursue their unconscionability

defense in the arbitral forum”)).

Plaintiff’s untimely Verified Fifth Amended Petition failed to plead a cause

of action for injunctive relief against Stripes. Even if considered, it sets forth in

Section V, entitled “Causes Of Action Against Stripes, LLC,” only two causes of

action: negligence and gross negligence. 21CR5176-5178. Its Prayer, Section XI,

requests only damages and pre-judgment and post-judgment interest. 21CR5180.

Nowhere does it request the entry of an injunction against Stripes or a stay of the

DSI Arbitration. See 21CR5174-5182. Although Section VIII, entitled “Plaintiff

Not Subject To Arbitration,” does not seek an injunction against Stripes or the DSI

Arbitration, it at least mentions a couple of causes of action in Paragraph 20:

Plaintiff contends that the arbitration provisions of the agreements upon which
Stripes relies are procedurally unconscionable, were fraudulently induced, and
were procured through acts of concealment and misrepresentation, the
Arbitration Agreement is invalid, and therefore this Court should deny
Defendant’s Application for Order for Arbitration and proceed to set this matter
for trial and issue an appropriate scheduling order.

21CR5179. Even Paragraph 20, however, does not request injunctive relief, it

wholly fails to “plead affirmatively the necessary facts and not legal conclusions,”

and it is in no way “direct, certain and particular,” as required under Rule 682. Texas

State Board of Medical Examiners v. McKinney, 315 S.W.2d 387, 390 (Tex. Civ.

App.—Waco 1958, no writ).

- 33 -
 Moreover, even assuming arguendo that Paragraph 20 somehow pleads

(which Stripes denies) (1) procedural unconscionability, (2) fraudulent inducement,

and (3) concealment and misrepresentation, for at least three reasons such allegations

cannot satisfy the first requirement of Butnaru v. Ford Motor Co.—pleading and

proof of a cause of action—in order to support the temporary injunction against

Stripes and the DSI Arbitration.

First, as shown above, the Texas Supreme Court has made clear that

unconscionability is a defense, not a cause of action. In re FirstMerit Bank, 52

S.W.3d at 757. Just days ago, the Texas Supreme Court again reiterated that “parties

asserting defenses to arbitration clauses have the burden to prove the defenses—

including unconscionability.” Royston, Rayzor, Vickery & Williams, LLP v. Lopez,

2015 Tex. LEXIS 622 at 9 (Tex. June 26, 2015)(emphasis added).

Second, the Trial Court made no finding of fraudulent inducement,

concealment or misrepresentation. The temporary injunction orders of May 27 and

June 8 make no such finding. 21CR5615-5616; SCR18-20. Texas Rule of Civil

Procedure 683 requires that a temporary injunction set forth a “detailed explanation

of the reason for the injunction’s issuance.” Adust Video v. Nueces County, 996

S.W.2d 245, 249 (Tex. App.—Corpus Christi, 1999, no pet.). “The explanation must

include specific reasons and not merely conclusory statements.” Law Funder, LLC

v. Law Offices of Douglas A. Allison, 2014 Tex. App. LEXIS 2504, 2014 WL 895512

- 34 -
(Tex. App.—Corpus Christi March 6, 2014, no pet.)(mem. op.)(citing Kotz v.

Imperial Capital Bank, 319 S.W.3d 54, 56-57 (Tex. App.—San Antonio 2010, no

pet.)). Despite Stripes’ objections, the temporary injunction orders of May 27 and

June 8 do not set forth fraudulent inducement, concealment or misrepresentation as

reasons for enjoining the DSI Arbitration. See 21CR5615-5616; SCR18-20; SRR

p.8,l.16 – p.9.,l.20.

Third, both temporary injunction orders are silent about fraudulent

inducement, concealment and misrepresentation for the simple reason that Plaintiff

presented no evidence of any of them. Plaintiff testified at the temporary injunction

hearing that he does not remember ever seeing the Election And Arbitration

Agreement, does not remember anyone from Stripes ever explaining it to him, and

does not remember anyone at Stripes ever discussing it with him. RR3 p.160,ll.3-

11. When Plaintiff signed the Election And Arbitration Agreement he did not know

anything about it. RR4 p.9,ll.3-9. Sammy Mrayyan brought the Election And

Arbitration Agreement to Plaintiff and told him to sign. RR3 p.161,ll.9-13.

However, as Plaintiff expressly admitted in his affidavit, “Sammy Mrayyan did not

explain the meaning of the arbitration agreement to [Plaintiff] before [Plaintiff]

signed the Election And Arbitration Agreement. Sammy Mrayyan did not explain

any of the contents of the Election And Arbitration Agreement to [Plaintiff] before

[Plaintiff] signed it.” RR3 p.256,ll.3-16; DX24 at ¶6. The Trial Court determined

- 35 -
 that these two quoted statements from Plaintiff’s affidavit are binding on him, RR3

p.258,ll.20-21, and Plaintiff’s counsel has stipulated that not just Sammy Mrayyan,

but no one explained any part of the Election And Arbitration Agreement to Plaintiff,

and that no one translated any part of it to him. RR4 p.10,ll.17-20.

Plaintiff believed that if he did not sign the Election And Arbitration

Agreement, he could not work for Stripes. RR3 p.161,ll.19-23. This is not a

misrepresentation or concealment by Stripes, because it is true—Plaintiff could not

work for Stripes if he did not sign the Election And Arbitration Agreement. Stripes

employees are required to sign the Election And Arbitration Agreement, but its

signature page gives the employee the option either to check a box and accept its

terms or to check a box and reject its terms. RR3 p.82,ll.3-12. Accepting the

Election And Arbitration Agreement’s terms accepts participation in the Plan,

eligibility for benefits and arbitration, while rejecting its terms rejects Plan

participation, benefits and arbitration. PX1 at p.1; PX2 at pp.1-2; RR3 p.84,ll.1-13.

Its signature page provides in part:

CHECK ONLY ONE OF THE FOLLOWING BOXES:

 I agree to the terms of this Agreement. OR  I reject the terms of this Agreement.

PX2 at p.4. Because the Election And Arbitration Agreement is optional for an

employee, accepting its terms is not a condition of employment at Stripes. RR3

p.83,l.2 – p.84,l.13. In fact, any Stripes employee who accepts the terms of the

- 36 -
Election And Arbitration Agreement has 5 days after accepting it to revoke his or

her acceptance. PX2 at p.3; RR3 at p.135,l.22 – p.136,l.14.

There is simply no evidence that Stripes misrepresented or concealed anything

from Plaintiff about the Election And Arbitration Agreement before he signed it,

checked the accept box, printed his name, dated his signature, and had his brother

sign it as his witness. In fact, the only evidence is to the contrary and shows that no

one from Stripes told Plaintiff anything about the Election And Arbitration

Agreement that was false, and there was no evidence that Plaintiff relied on anything

said to him. In re Border Steel, Inc., 229 S.W.3d 825, 834-35 (Tex. App.—El Paso

2007, orig. proceeding)(“The record does not show that a material misrepresentation

was made to Juarez regarding his rights under the Plan. There is no record that

[Sammy Mrayyan] made any statement to [Plaintiff] regarding the plan. Even

assuming that [Sammy Mrayyan] misunderstood what arbitration was and did not

know that an employee gave up his right to a jury trial by agreeing to arbitrate

disputes with [Stripes], there is no record that [Plaintiff] relied on any statement

made by [Sammy Mrayyan] when [Plaintiff] agreed to the Plan. Therefore,

[Plaintiff] did not show that the Agreement was obtained by fraud, and the

Arbitration Agreement is not unenforceable on that ground.”).

In sum, Plaintiff failed to plead and prove a cause of action against Stripes.

- 37 -
IV. THE TEMPORARY INJUNCTION DESTROYED THE STATUS QUO.

The purpose of a temporary injunction is to preserve the status quo. In re

Newton, 146 S.W.3d 648, 651 (Tex. 2004). Indeed, Plaintiff’s First Amended

Application purports to request maintenance of “the status quo of the parties.”

20CR4610. However, the Supreme Court defines “status quo” as “the last, actual,

peaceable, non-contested status which preceded the pending controversy.” In re

Newton, 146 S.W.3d at 651. A temporary injunction that destroys rather than

preserves the status quo is an abuse of discretion and must be dissolved. Ballenger

v. Ballenger, 668 S.W.2d 467, 469-70 (Tex. App.—Corpus Christi 1984, writ dism’d

w.o.j.).

As detailed in Paragraphs 38-42 of the Statement Of Facts above, in October

and November of 2014, Sarles and Mr. Gonzales discussed the Election And

Arbitration Agreement and staying all of the claims against Stripes, and they agreed

to the Agreed Stay Order, 1CR570-571; DX2; RR3 p.99,l.20 – p.101,l.15, agreed to

stay the proceedings in this lawsuit against Stripes, agreed to the language of the

Agreed Stay Order, and agreed to resolve any disputes between Plaintiff and Stripes

in binding arbitration before DSI. RR3 p.104,ll.5-22, p.105,ll.15-19. Mr. Gonzales

never objected to the enforceability of the Election And Arbitration Agreement and

never asserted any defense to its enforceability in his discussions with Sarles during

the negotiations that resulted in the Agreed Stay Order. RR3 p.106,l.16 – p.107,l.3.

- 38 -
 The Agreed Stay Order states that it is “Agreed As To Form Only,” not merely

“Approved As To Form Only.” 1CR571; DX2 at p.2; RR3 p.107,ll.8-14. Mr.

Gonzales’ partner signed the Agreed Stay Order for Plaintiff and had it filed with

and signed by the Trial Court. 1CR571; DX2 at p.2; RR3 p.107,ll.15-21. Regarding

the Agreed Stay Order, Mr. Gonzales admitted during his opening statement at the

temporary injunction hearing that “we did not contest it at that time.” RR3

p.17,ll.15-16.

The Agreed Stay Order was signed by the Trial Court on December 2, 2014.

1CR570; DX2 at p.1. It provides:

Defendant Stripes LLC having filed with its Original Answer an
Application for Order for Arbitration requesting a formal written order
enforcing the automatic stay imposed by Section 171.025(a) of the Civil
Practice and Remedies Code on any further proceedings against Stripes LLC
in this lawsuit, the Court is of the opinion that the statutory stay should be
formalized by this Order. It is, therefore,
ORDERED that Plaintiff Hazem Mrayyan’s claims and causes of action
and all further proceedings against Defendant Stripes LLC be, and they hereby
are, stayed pending resolution of these two parties’ claims, causes of action and
defenses in binding arbitration before Dispute Solutions, Inc. (“DSI”) in
accordance with their Election And Arbitration Agreement and the DSI
Arbitration Rules.

The Agreed Stay Order was not prepared to memorialize any oral ruling by

the Trial Court on Stripes’ Application. It does not mention any hearing, argument

or evidence being presented to the Trial Court, because no hearing ever took place

on Stripes’ Application. No hearing ever took place, because Mr. Gonzales and

Sarles agreed to the Agreed Stay Order and submitted it to the Trial Court for entry

- 39 -
without any need for a hearing on Stripes’ Application. Sarles considered the

Agreed Stay Order an agreed order or at least a Rule 11 agreement, and Stripes relied

on the Agreed Stay Order by not setting its Application for hearing before the Trial

Court and by not participating in discovery. RR3 p.107,l.4 – p.108,l.13,

Under the Agreed Stay Order and In re Newton, “the last, actual, peaceable,

non-contested status which preceded the pending controversy” was where:

(1) all of Plaintiff’s claims and all proceedings against Stripes in the Trial
Court were stayed until the resolution of Plaintiff’s and Stripes’ claims,
causes of action and defenses in binding arbitration before DSI in
accordance with those parties’ Election And Arbitration Agreement and
the DSI Rules, and

(2) Plaintiff was pursuing claims for damages, and only claims for damages,
against Stripes in the DSI Arbitration before Arbitrator Black.

Before May 8, 2015, when Plaintiff filed Plaintiff’s First Amended Application

seeking to enjoin Stripes from proceeding with the DSI Arbitration, 20CR4605-

4633, the “last, actual, peaceable, non-contested status which preceded the pending

controversy” was Plaintiff’s claims against Stripes in the Trial Court stayed and

Plaintiff and Stripes arbitrating before Arbitrator Black in the DSI Arbitration.

Plaintiff did not, and cannot, establish the status quo as some state of affairs

before the May 8 filing of Plaintiff’s First Amended Application. On April 30, 2015,

Plaintiff had filed in the Trial Court his original Application For Temporary

Restraining Order For Emergency Stay Of Arbitration, requesting the Trial Court to

stay DSI from proceeding with the selection of the arbitrator for the DSI Arbitration

- 40 -
that Plaintiff had voluntarily initiated on March 6, 2015. 20CR4217-4234. That

original Application asserted that Plaintiff would suffer irreparable harm if the

arbitrator-selection process was not halted, 20CR4220, and it stated that an

emergency stay was necessary to maintain the status quo. 20CR4221. However,

rather than setting that Application for hearing before the Trial Court, Plaintiff’s

counsel submitted its strike list to DSI, resulting in the appointment of Plaintiff’s

first choice, Arbitrator Black. CR4756-4760; RR3 p.20,ll.9-17; see RR3 p.30,l.24 –

p.31,l.11. Plaintiff never filed any objection to the appointment of Arbitrator Black

in the DSI Arbitration. PX4d; CR3 p.20,ll18-24; see CR3 p.31,ll.12-18. The “last,

actual, peaceable, non-contested status which preceded the pending controversy”

was thus Plaintiff and Stripes arbitrating in the DSI Arbitration before their selected

arbitrator, Arbitrator Black, while this lawsuit was stayed by the Agreed Stay Order.

There is no dispute that (1) Plaintiff signed the Election And Arbitration

Agreement on December 14, 2012, PX2 at p.4; RR3 p.159,ll.8-23; RR3 p.14,ll.23-

24, (2) his counsel agreed to the form of, and did not contest the entry of, the Agreed

Stay Order on December 2, 2014, RR3 p.104,ll.5-22, p.105,ll.15-19; RR3 p.17,ll.15-

16, (3) his counsel voluntarily, unconditionally and without reservation initiated the

DSI Arbitration on March 6 and 19, 2015 with full knowledge of Plaintiff’s limited

English skills, RR3 p.109,l.9 – p.111,l.21, p.113,ll.5-12, and (4) Plaintiff filed no

motion or document with the Trial Court or DSI challenging the enforceability of

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the Election And Arbitration Agreement or DSI’s jurisdiction. RR3 p.115,l.24 –

p.116,l.21.

It is also undisputed that the March 6, 2015 Demand for Arbitration sought no

relief other than damages, was unconditional, contained no reservation of Plaintiff’s

rights, asserted no objection or defense to the DSI arbitrator’s jurisdiction, and said

nothing about being filed to preserve the statute of limitations. DX4; RR3 p.112,l.6

– p.113,l.12. Similarly, Plaintiff’s March 19, 2015 electronically-filed Demand for

Arbitration was unconditional, contained no reservation of Plaintiff’s rights, asserted

no objection or defense to the arbitrator’s jurisdiction, said nothing about being filed

to preserve the statute of limitations, and made no contention that Plaintiff is not

bound by the Election And Arbitration Agreement because he could not understand

English, and Mr. Hunter made no such assertions in his conversation with Sarles

prior to its March 19th filing with DSI. DX5; RR3 p.114,l.6 – p.115,l.23.

Contrary to the arguments in Plaintiff’s untimely Reply To Defendant Stripes

LLC’s Response To Plaintiff’s Application For Temporary Injunction, 21CR5192-

5608, Plaintiff and Stripes arbitrating before Arbitrator Black was not a continuing

violation of the law, nor was it deprivation of Plaintiff’s property without due

process of law. 21CR5196-5197 (citing 8100 N. Freeway Ltd. v. City of Houston,

329 S.W.3d 858 (Tex. App.—Houston [14th Dist.] 2010, no pet.)(adult arcade

operating without permit), and Gen. Tel. Co. v. City of Wellington, 294 S.W.2d 385

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(Tex. 1956)(rates set by city for telephone exchange company prevented a fair return

on the company’s property in violation of constitutional guarantees)). Plaintiff,

Stripes, DSI and Arbitrator Black were not violating the law by proceeding with the

DSI Arbitration. Plaintiff arbitrating in the DSI Arbitration that his counsel

voluntarily, knowingly and unconditionally initiated—twice—was not deprivation

of Plaintiff’s rights without due process; rather it was simply Plaintiff honoring his

contractual obligations to arbitrate set forth in the Election And Arbitration

Agreement and the Agreed Stay Order that altered his rights by contract.

The Trial Court’s temporary injunction destroyed rather than preserved the

status quo and must be dissolved. Ballenger v. Ballenger, 668 S.W.2d at 469-70.

V. PLAINTIFF FAILED TO ESTABLISH IMMINENT, IRREPARABLE
HARM.

Plaintiff also failed to establish another necessary element for the issuance of

any temporary injunction, “a probable, imminent, and irreparable injury in the

interim.” Butnaru, 84 S.W.3d at 204. Paragraph 1 of both the May 27 temporary

injunction order and the June 8 temporary injunction order states that “Plaintiff will

be irreparably injured because Plaintiff will be subject to arbitration proceedings,

motions, and hearings that will deprive him of his right to have this Court decide

arbitrability and his right to a jury trial.” 21CR5615; SCR18 (emphasis added).

However, as this court explained in D. Wilson Constr. Co. v. McAllen Ind.

Sch. Dist., 848 S.W.2d 226, 231 (Tex. App.—Corpus Christi 1992, writ dism’d

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w.o.j.), and reiterated in In re Burton, McCumber & Cortez, LLP, 115 S.W.3d 235,

237 (Tex. App.—Corpus Christi 2003, orig. proceeding), when a party contractually

agrees to arbitrate a dispute, it is not deprived of its right to a jury trial and access to

the courts, because it has already waived its right to recourse in the courts.

A. Plaintiff has no right to have the Trial Court decide arbitrability;
Arbitrator Black decides all arbitrability disputes.

Under the FAA, Texas law, the Election And Arbitration Agreement and the

DSI Rules, Arbitrator Black—not the courts—decides all questions regarding the

Election And Arbitration Agreement’s enforceability or validity. The Election And

Arbitration Agreement incorporates by reference the Arbitration Procedures from

the Plan’s SPD. PX2 at p.2 of 4. The Arbitration Procedures stipulate to the

application of the FAA. PX2 at p.22.

“Under the FAA, absent unmistakable evidence that the parties intended the

contrary, it is the court rather than the arbitrator that must decide ‘gateway matters,’

such as whether a valid arbitration agreement exists.” Rio Grande Xarin, II, Ltd. v.

Wolverine Robstown, LP, 2010 Tex. App. LEXIS 5189 at *21, 2010 WL 2697145

(Tex. App.—Corpus Christi July 6, 2010, pet. dism’d)(mem. op)(citing In re Weekly

Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005))(emphasis added). However, when

“clear and unmistakable evidence” exists that the parties intended for an arbitrator

to decide “gateway” questions of arbitrability like enforceability and validity, such

matters are for determination by the arbitrator, not the courts. E.g., Rio Grande

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Xarin, II, Ltd., 2010 Tex. App. LEXIS 5189 at *21-*23. “The rule that courts usually

decide issues of arbitrability is a default rule that applies unless the contract

provides otherwise.” Ernst & Young LLP v. Martin, 278 S.W.3d 497, 500 (Tex.

App.—Houston [14th Dist.] 2009, no pet)(holding that unconscionability issue was

for the arbitrator to decide and conditionally granting writ of mandamus)(citing

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002), First Options of

Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995), and Forest Oil Corp. v. McAllen,

268 S.W.3d 51, 61 n.38 (Tex. 2008))(emphasis added).

The Election And Arbitration Agreement provides in boldface type that the

kinds of claims that it covers include “any and all” “claims challenging the

existence, validity or enforceability of this Agreement (in whole or in part) or

challenging the applicability of this Agreement to a particular dispute or

claim.” PX2 at p.2 of 4 (emphasis in original). So-called “delegation provisions”

like this are “clear and unmistakable evidence” of the intent to arbitrate

enforceability and validity and are fully enforceable under the FAA. See Rent-A-

Center, West, Inc. v. Jackson, 561 U.S. 63 (2010)(requiring employee’s

unconscionability claim to be decided by the arbitrator); Aviles v. Russell Stover

Candies, Inc., 559 Fed. Appx. 413, 2014 U.S. App. LEXIS 6248 (5th Cir. April 4,

2014)(nonsubscriber occupational injury case; enforcing delegation provision

identical to this one between Plaintiff and Stripes); IHS Acquisition No. 131, Inc.

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d/b/a Horizon Healthcare Center at El Paso v. Iturralde, 387 S.W.3d 785, 792-93

(Tex. App.—El Paso, 2012, no pet.)(nonsubscriber occupational injury case;

enforcing delegation provision identical to this one between Plaintiff and Stripes);

IHS Acquisition No. 171, Inc. d/b/a Mesa Hills Specialty Hospital v. Beatty-Ortiz,

387 S.W.3d 799, 807-08 (Tex. App.—El Paso, 2012, no pet.)(same). 1

Plaintiff and Stripes agreed to arbitrate under the DSI Rules, PX2 at p.19,

which their counsel and the Trial Court acknowledged in the Agreed Stay Order are

applicable. 1CR570-571; DX2. Under both the FAA and Texas law, when parties

to an arbitration agreement agree to arbitrate under certain rules, they are thereafter

bound by those rules. E.g., Volt Info. Sciences, Inc. v. Board of Trustees, 489 U.S.

468, 479 (1989)(parties to an arbitration agreement may “specify by contract the

rules under which that arbitration will be conducted”); In re Oakwood Mobile

Homes, Inc., 987 S.W.2d 571, 574 (Tex. 1999)(agreement to arbitrate in accordance

1
Under Rent-A-Center, West, Inc. v. Jackson, an employee’s unconscionability challenge to an
FAA-governed arbitration agreement with his employer that is not specifically aimed at the
agreement’s delegation provision must be arbitrated. 561 U.S. at 67-76. During his opening
statement at the temporary injunction hearing, Mr. Gonzales stated: “So the whole issue in the
case and then is the enforceability of an arbitration agreement. And to put it in a nutshell, we
believe that the trial court, not the arbitrator, makes that decision.” RR3 p.7,ll.14-17 (emphasis
added). Later, his co-counsel, Ms. Reilly, argued during opening statement that “we say, look,
this entire agreement is not valid.” RR3 p.54,ll.23-24 (emphasis added). Indeed, a word-search
of the Reporter’s Record shows that only Sarles, counsel for Stripes, argued about the delegation
provision in the Election And Arbitration Agreement. Similarly, Plaintiff’s First Amended
Application argued only against the unconscionability of the Election And Arbitration Agreement
in general, rather than the delegation provision specifically: “This emergency stay is necessary to
maintain the status quo of the parties until the Court considers the existence of a valid arbitration
agreement and whether or not it was unconscionable at the time it was made.” 20CR4610
(emphasis added).

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with “the applicable rules of the American Arbitration Association” made the AAA

rules binding); In re Neutral Posture, Inc., 135 S.W.3d 725, 729 (Tex. App.—

Houston [1st Dist.] 2003, orig. proceeding)(same).

DSI Rule 5(a) provides that “[t]he arbitrator shall have the power to rule on

his or her own jurisdiction, including any objections with respect to the existence,

scope or validity of the arbitration agreement.” DX3 at p.2. Both federal and Texas

courts hold that “[w]hen . . . the parties agree to a broad arbitration clause and

explicitly incorporate rules that empower an arbitrator to decide issues of

arbitrability, the incorporation serves as clear and unmistakable evidence of the

parties’ intent to delegate such issues to an arbitrator.” Rio Grande Xarin, II, Ltd. v.

Wolverine Robstown, LP, 2010 Tex. App. LEXIS 5189 at *22-*23, 2010 WL

2697145 (Tex. App.—Corpus Christi July 6, 2010, pet. dism’d)(mem. op)(quoting

Saxa v. DFD Architecture Inc., 312 S.W.3d 224, 230 (Tex. App.—Dallas 2010, pet.

denied), and citing Haddock v. Quinn, 287 S.W.3d 158, 172 (Tex. App.—Fort Worth

2009, pet. denied), Burlington Resources Oil & Gas Co. v. San Juan Basin Royalty

Trust, 249 S.W.3d 34, 39-42 (Tex. App.—Houston [1st Dist.] 2007, pet. denied),

and Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366, 1372-73 (Fed. Cir. 2006));

Momentis U.S. Corp. v. Weisfeld, 2014 Tex. App. LEXIS 8000 at 13, 2014 WL

3700697 (Tex. App.—Dallas July 23, 2014, no pet.)(mem. op.)(also quoting Saxa

and holding that “[u]nder the clear terms of the parties’ agreement, whether the

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arbitration agreement is illusory, unconscionable, or against public policy is for the

arbitrator to decide.”); see, e.g., Schlumberger Tech. Corp. v. Baker Hughes, Inc.,

355 S.W.3d 791, 803 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Aspri

Investments, LLC v. Afeef, 2011 Tex. App. LEXIS 7082 at *28 (Tex. App.—San

Antonio Aug. 31, 2011, pet. dism’d)(mem. op.); Petrofac, Inc. v. Dynmcdermott

Petrol. Ops. Co., 687 F.3d 671, 675 (5th Cir. 2012); Terminix Int’l Co. v. Palmer

Ranch Ltd., 432 F.3d 1327, 1332 (11th Cir. 2005); Contec Corp. v. Remote Solution

Co., 398 F.3d 205, 208 (2d Cir. 2005).

Under both the Election And Arbitration Agreement and the DSI Rules,

Arbitrator Black—not the courts—decides all disputes regarding the Election And

Arbitration Agreement’s enforceability or validity. Plaintiff already has waived his

right to a jury trial and access to the courts. D. Wilson Constr. Co., 848 S.W.2d at

231; In re Burton, McCumber & Cortez, LLP, 115 S.W.3d at 237. Plaintiff cannot

further waive rights that are already waived and failed to establish irreparable harm.

B. Plaintiff has waived any objection to Arbitrator Black’s
jurisdiction.

Having elected in 2012 to accept the optional terms of the Election And

Arbitration Agreement and then in 2013-2014 having accepted and retained more

than $450,000 in Plan benefits paid in reliance on his acceptance of the Election And

Arbitration Agreement, much of it paid while Plaintiff was represented by counsel

who understood that the Plan was paying the benefits because Plaintiff had accepted

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the Election And Arbitration Agreement, Plaintiff no longer has a jury trial right that

can be further waived. Moreover, Plaintiff will not waive his right to object to the

jurisdiction of Arbitrator Black by participating in briefing and a hearing in the DSI

Arbitration on Stripes’ Motion To Determine The Enforceability Of The Parties’

Election and Arbitration Agreement, 20CR4622-4629, because Plaintiff on March 6

and 19, 2015 already waived his right to object to Arbitrator Black’s jurisdiction

when Plaintiff twice voluntarily demanded arbitration to initiate the DSI Arbitration.

DSI Rule 5(c) provides that “[a] party must object to the jurisdiction of the

arbitrator or to the arbitrability of a claim or counterclaim no later than the filing of

its Answer to the Demand or Counterclaim that gives rise to the objection.” DX3 at

p.2. DSI Rule 5(c) is identical to AAA Employment Arbitration Rule 6(c), RR3

p.109,ll.3-8, which Texas courts have enforced, holding that failure to timely object

in accordance with the rule constitutes waiver. See Thomas Petroleum, Inc. v.

Morris, 355 S.W.3d 94, 98 (Tex. App.—Houston [1st Dist.] 2011, pet. denied), cert.

denied, 133 S. Ct. 210 (2012); Ouzene v. Haynes, 2012 Tex. App. LEXIS 2888 at

*10, 2012 WL 1249420 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)(mem.

op.). It is undisputed that Plaintiff has never challenged the DSI arbitrator’s

jurisdiction. RR3 p.115,l.24 – p.116,l.21. Under DSI Rule 5(c), Plaintiff has thus

waived any challenge to Arbitrator Black’s jurisdiction over arbitrability disputes

like this one set, improperly, for hearing on July 28, 2015 before the Trial Court.

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 Plaintiff also waived any objection to the DSI arbitrator’s jurisdiction by

voluntarily, knowingly and unconditionally submitting to DSI on March 6 and 19,

2015 two Demands for Arbitration, DX4 and DX5, neither of which made any

objection whatsoever to the DSI’s arbitrator’s jurisdiction. Plaintiff then

participated in the selection of Arbitrator Black and made no objection to his

appointment. PX4d; CR3 p.20,ll18-24; see CR3 p.31,ll.12-18. See In re Hospitality

Employment Group, 234 S.W.3d 832, 835 (Tex. App.—Dallas 2007, orig.

proceeding)(holding that had injured employee of nonsubscriber intended to

challenge part of the arbitration agreement, “she should have done so prior to

participating in the arbitration proceedings.”); Circuit City Stores v. Curry, 946

S.W.2d 486, 489 (Tex. App.—Fort Worth 1997, orig. proceeding)(employee’s

arbitration request and participation in selecting an arbitrator established existence

of arbitration agreement); Pilgrim Investment Corp. v. Reed, 156 Wis. 2d 677, 686,

457 N.W.2d 544, 548 (Wis. Ct. App.)(“Absent a reservation or objection to the

arbitration process, when one party participates in preliminary arbitration procedures

preparatory to the hearing on the merits, that party is signaling to the other side that

full participation in the process is intended.”), review denied, 458 N.W.2d 533 (Wis.

1990).

The Trial Court’s temporary injunction orders do not prevent imminent,

irreparable harm. Plaintiff cannot now obtain a judicial “undoing” of the waivers

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that his own signature on the Election And Arbitration Agreement and his attorneys’

signatures on the Agreed Stay Order and on his two voluntary DSI Demands for

Arbitration have effected. Any “harm” purportedly suffered by arbitrating under the

Election And Arbitration Agreement and the DSI Rules is not “imminent;” because

it already occurred before the temporary injunction hearing began.

VI. PLAINTIFF FAILED TO PROVE A PROBABLE RIGHT TO THE
INJUNCTIVE RELIEF SOUGHT.

Plaintiff also failed to establish another necessary element for the issuance of

any temporary injunction, “a probable right to the relief sought.” Butnaru, 84

S.W.3d at 204. Paragraph 1 of both the May 27 and June 8 temporary injunction

orders states that “Plaintiff will be irreparably injured because Plaintiff will be

subject to arbitration proceedings, motions, and hearings that will deprive him of his

right to have this Court decide arbitrability and his right to a jury trial.”

21CR5615; SCR18 (emphasis added). However, Plaintiff failed to prove either (1)

a probable right to judicial determination of arbitrability disputes under the Election

And Arbitration Agreement, or (2) a probable right to trial by jury.

A. Plaintiff failed to prove that the courts have the right to decide
arbitrability disputes.

As shown above in Section V, the delegation provision of the Election And

Arbitration Agreement requires that all disputes about the alleged unconscionability

of the Election And Arbitration Agreement be arbitrated. This delegation provision

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is absolutely enforceable under the FAA. See Jackson, 561 U.S. 63 (requiring

employee’s unconscionability claim to be decided by the arbitrator); Aviles, 2014

U.S. App. LEXIS 6248 (enforcing delegation provision identical to this one between

Plaintiff and Stripes); Iturralde, 387 S.W.3d at 792-93 (same); Beatty-Ortiz, 387

S.W.3d at 807-08 (same).

Moreover, the Election And Arbitration Agreement’s incorporation of DSI

Rule 5(a) independently constitutes “clear and unmistakable” evidence that

arbitrability disputes are to be decided by the DSI arbitrator. Rio Grande Xarin, II,

Ltd., 2010 Tex. App. LEXIS 5189 at *22-*23; Saxa, 312 S.W.3d at 230; Haddock,

287 S.W.3d at 172; Burlington Resources Oil & Gas Co., 249 S.W.3d at 39-42;

Momentis U.S. Corp., 2014 Tex. App. LEXIS 8000 at 13.

Having failed even to assert, much less establish, the unconscionability of the

delegation provision or of DSI Rule 5, see footnote 1 supra, Plaintiff has failed to

raise any argument that would authorize the Trial Court rather than Arbitrator Black

to decide the Election And Arbitration Agreement’s enforceability.

B. Plaintiff failed to prove that he has the right to trial by jury.

It is undisputed that Plaintiff signed the Election And Arbitration Agreement.

PX2 at p.4; RR3 p.159,ll.8-23; RR3 p.14,ll.23-24. However, in an attempt to avoid

his obligation to arbitrate his claims against Stripes, Plaintiff’s First Amended

Application conclusorily asserted in Paragraph 14 that “[i]t is probable that Plaintiff

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will prevail on the merits of his objections and challenges to the validity of the

subject arbitration agreement and whether it is an unconscionable agreement.”

20CR4609. Plaintiff’s unconscionability argument, in turn, is based solely on

Plaintiff’s assertion that the Election And Arbitration Agreement is unenforceable

as procedurally unconscionable, because Plaintiff is allegedly “unable to read the

English language, and must have someone translate anything written in said

language to Arabic in order to comprehend and understand what is written.”

Regardless, under Texas law, as a matter of law, Plaintiff’s asserted English

deficiency does not render the Election And Arbitration Agreement procedurally

unconscionable. The undisputed facts also show that Plaintiff has no English

deficiency.

1. The Election And Arbitration Agreement is enforceable.

The Texas Supreme Court has repeatedly held that there is nothing per se or

inherently unconscionable about arbitration agreements. Royston, Rayzor, Vickery

& Williams, LLP v. Lopez, 2015 Tex. LEXIS 622 at *8 (Tex. June 26, 2015); In re

Palm Harbor Homes, Inc., 195 S.W.3d 672, 678 (Tex. 2006); In re

AdvancePCSHealth LP, 172 S.W.3d 603, 608 (Tex. 2005); In re Oakwood Mobile

Homes, Inc., 987 S.W.2d 571, 574 (Tex. 1999); EZ Pawn Corp. v. Mancias, 934

S.W.2d 87, 90 (Tex.1996).

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 In Morrison v. Insurance Company of North America, 69 Tex. 353, 359, 6

S.W.605, 606 (1887), explained a bedrock principle of Texas law:

Every person having capacity to make a contract, in the absence of fraud,
misrepresentation or concealment, must be held to have known what the words
used in a contract made by him were, and to have known their meaning; and he
must also be held to have known and fully comprehended the legal effect of the
contract which the words used made.

Just last month, in a case involving an arbitration agreement, the Texas Supreme

Court reiterated this fundamental “principle that absent fraud, misrepresentation, or

deceit, one who signs a contract is deemed to know and understand its contents and

is bound by its terms.” Lopez, 2015 Tex. LEXIS 622 at *8.

Applying this principle, Texas law simply rejects the proposition that an

arbitration agreement’s enforcement can be avoided by a signatory’s assertion that

he did not subjectively understand arbitration. E.g., In re McKinney, 167 S.W.3d

833, 835 (Tex. 2005)(absent fraud, misrepresentation or deceit, parties are bound by

terms of the contract they signed, regardless of whether they read it or thought it had

different terms”); Mancias, 934 S.W.2d at 90 (employee’s claim that he did not read

and understand arbitration clause did “not excuse him from arbitration”); Cantella

& Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996)(even though signatory did not

know of arbitration provision when he signed contract, the legal presumption that a

party knows the contents of the agreements it signs required provision’s

enforcement); D. Wilson Constr. Co. v. McAllen Indep. School Dist., 848 S.W.2d

- 54 -
226, (Tex. App.—Corpus Christi 1992, writ dism’d w.o.j.)(“a party who signs a

contract is presumed to know its contents”); In re Big 8 Food Stores, Ltd., 166

S.W.3d 869, 878 (Tex. App.—El Paso 2005, orig. proceeding)(“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.”).

Similarly, for more than 80 years, Texas law has also held that illiteracy or

the inability to read English does not relieve a contracting party of the consequences

of his agreement; if he is unable to read the contract, he must have it read to him.

E.g., Indemnity Ins. Co. of North America v. W.L. Macatee & Sons, 129 Tex. 166,

170-71, 101 S.W.2d 553, 556-57 (1937)(holding that facts that paymaster did not

explain or point out assignment of wage claims on back of payroll sheets and that

workmen did not know contents of assignment or consciously intend to assign their

claims did not prevent valid assignments from being made, even by illiterate

workmen, because one is presumed as a matter of Texas law to intend what he signs);

De Villagomes v. First Nat’l Bank-Edinburg, 2005 Tex. App. LEXIS 6175 (Tex.

App.—Corpus Christi 2005, pet. denied)(mem. op.)(“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.”)(citing Vera v. North Star

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Dodge Sales, Inc., 989 S.W.2d 13, 17 (Tex. App.—San Antonio 1998, no pet), and

Tamez v. Southwestern Motor Transp., Inc., 155 S.W.3d 564, 570 (Tex. App.—San

Antonio 2004, no pet.)(“even though English was not his first language, we must

presume, as a matter of law, that [appellant] read and understood the contract, unless

he was prevented from doing so by trick or artifice.”)); Nguyen Ngoc Giao v. Smith

& Lam, P.C., 714 S.W.2d 144, 146 (Tex. App.—Houston [1st Dist.] 1986, no

writ)(binding Vietnamese client to fee agreement because, “if a person is unable to

read the contract, he must have it read to him’).

Texas law also has long rejected the proposition that one party to a contract

owes a duty to explain the contract to an illiterate or English-illiterate party. E.g.

Associate Employers Lloyds v. Howard, 156 Tex. 277, 281, 294 S.W.2d 706, 708

(1956)(workers’ compensation insurer held to have had no duty to send explanatory

letter or otherwise explain to injured, illiterate employee Compromise Settlement

Receipt accompanying check that employee cashed thinking it was for past due

compensation benefits); Guzman v. Inter National Bank, 2008 Tex. App. LEXIS

2034, 2008 WL 739828 at n.2 (Tex. App.—Corpus Christi 2008, no pet.)(mem. op.)

(“Appellant also argues that because she does not read or speak English, INB had

the duty to take affirmative steps to ensure adequate understanding. We have never

recognized such a duty.”).

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 Moreover, as shown in Paragraphs 2-7 of the Statement Of Facts, Plaintiff is

well educated and is not illiterate in English. It is impossible to believe that Plaintiff

could have passed his Business Administration courses and an English Composition

course at Mississippi State University, or successfully leased, borrowed money for,

managed and sold his Chevron gas station business, if he really was illiterate in

English. Plaintiff gave his deposition in this case in English and without the use of

an interpreter, RR3 p.90,l.11 – p.91,l.8, and then neither Plaintiff nor his attorney

made any changes to Plaintiff’s deposition transcript testimony. DX23. Plaintiff

has twice verified in English his interrogatory answers in this case. DX19 at p.14;

DX22 at p.5.

Although “Sammy Mrayyan did not explain the meaning of the arbitration

agreement to [Plaintiff] before [he] signed the Election And Arbitration Agreement,”

and “Sammy Mrayyan did not explain any of the contents of the Election And

Arbitration Agreement to [Plaintiff] before [he] signed it,” RR3 p.256,ll.3-16; DX24

at ¶6, Plaintiff failed to establish that his brother, Sammy Mrayyan, could not have

explained the same Election And Arbitration Agreement that he had signed two

months before, DX7 at p.4; RR3 p.132,l.21 – p.133,l.7, and that had been explained

to Sammy Mrayyan by his friend and Area Manager, Kamal Ghanem. RR4 p.49,ll.3-

14; RR3 p.79,ll.1-9. Plaintiff simply proved that he never asked Sammy Mrayyan,

Kamal Ghanem or anyone else to explain the Election And Arbitration Agreement,

- 57 -
as Plaintiff was required to do under Texas law if he did not understand it or could

not read it, and given the undisputed facts about Sammy Mrayyan’s U.S. educational

and occupational background in Paragraphs 8-10 of the Statement Of Facts, it would

be an abuse of discretion to determine that Sammy Mrayyan could not have

explained the Election And Arbitration Agreement to Plaintiff had Plaintiff asked

him to do so.

2. Plaintiff ratified the Election And Arbitration Agreement.

Even if, as Plaintiff now belatedly contends, the Election And Arbitration

Agreement were unconscionable or otherwise voidable (all of which Stripes

vigorously denies), it is fully enforceable against Plaintiff. Plaintiff knew that the

Plan paid the official billing statements from the hospitals that he attended and for

the treatment that he received, RR3 p.235,l.11 – p.236,l.11; DX19 at pp.9-10; DX20,

and that he was receiving a weekly check from the Plan. RR3 p.236,l.12 –

p.237,l.24; DX20 at second page. Even if Plaintiff were to contend that he did not

understand how or why the Plan paid these benefits, his attorney, Mr. Burkett

certainly understood. See Statement Of Facts at ¶¶30-33. As a matter of law, the

notice and knowledge of Mr. Burkett is imputed to Plaintiff. See Rogers v. B&R

Development, Inc., 523 S.W.2d 15, 18 (Tex. Civ. App.—Fort Worth 1975, no

writ)(“Whether [the client] knew each of these items is immaterial because such

knowledge that his attorney had is imputed to him.”); Westfield Dev., Inc. v.

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Rubashkin, 2007 Tex. App. LEXIS 1154 at *13-*14 (Tex. App.—Houston [1st

Dist.] 2007, no pet.)(mem. op.)(“Westfield, the principal, is bound by the knowledge

of its agent, attorney Kelly Newman”).

Under Texas law, Plaintiff’s undisputed receipt, acceptance and retention of

over $450,000 in Plan benefits, much of which was paid while Plaintiff was

represented by counsel, ratified the Election And Arbitration Agreement and estops

him from now denying its enforceability. E.g., Big 8 Food Stores, 166 S.W.3d at

878 (plaintiff employee who claimed she did not understand arbitration agreement

ratified it by accepting and retaining “substantial benefits” received as result of

having signed arbitration agreement); Border Steel, Inc., 229 S.W.3d at 835 (same);

In re HEB Grocery Co., L.P., 299 S.W.3d 393, 399-400 (Tex. App.—Corpus Christi

2009, orig. proceeding) (rejecting the employee’s invalidity argument and noting

that he “sought and received employee benefits under the Plan prior to filing suit

against HEB”); Bustos v. Intex Aviation Services, Inc., 1996 U.S. Dist. LEXIS 14475

(N.D. Tex. 1996) (plaintiff employee’s acceptance of $3,000 in benefits from

nonsubscriber’s ERISA plan constituted her ratification as a matter of law of plan’s

waiver agreement); Land Title Company of Dallas, Inc. v. F.M. Stigler, Inc., 609

S.W.2d 754, 756 (Tex. 1980) (“Stigler’s refusal to tender back the down payment

funds, after learning of the subordination agreement and the source of the money,

amounted to an affirmance of Russell’s unauthorized act and constituted ratification

- 59 -
of the subordination agreement.”); Barker v. Roelke, 105 S.W.3d 75, 85 (Tex.

App.—Eastland 2003, pet. denied)(uncontroverted evidence of acts inconsistent

with intent to avoid a contract had effect of ratifying contract as a matter of law).

3. The Agreed Stay Order obligates Plaintiff to arbitrate.

As detailed in Paragraphs 38-42 of the Statement Of Facts, Sarles and Mr.

Gonzales discussed the Election And Arbitration Agreement and staying all of the

claims against Stripes, and they agreed to the Agreed Stay Order, 1CR570-571;

DX2; RR3 p.99,l.20 – p.101,l.15, p.104,ll.5-22, p.105,ll.15-19. The Agreed Stay

Order states that it is “Agreed As To Form Only,” not merely “Approved As To

Form Only.” DX2 at p.2 (emphasis added); RR3 p.107,ll.8-14. Mr. Gonzales’

partner signed the Agreed Stay Order for Plaintiff and had it entered by the Trial

Court. 1CR571; DX2 at p.2; RR3 p.107,ll.15-21. The Agreed Stay Order was not

prepared to memorialize any oral ruling by the Trial Court on Stripes’ Application.

It does not mention any hearing, argument or evidence being presented to the Trial

Court, because it was presented to the Trial Court for entry in lieu of any hearing on

Stripes’ Application. Plaintiff presented no evidence to the contrary.

Besides being an order of the Trial Court, the Agreed Stay Order constitutes

a Rule 11 agreement, having satisfied all of the requirements of Rule 11 by being

“in writing, signed by the attorneys for both parties and by the judge, and filed with

the court’s papers as part of the record.” Trevino v. Houston Orthopedic Center, 831

- 60 -
S.W.2d 341, 344 (Tex. App.—Houston [14th Dist.] 1992, writ denied). As, at a

minimum, a valid Rule 11 agreement, the Agreed Stay Order independently

obligates Plaintiff to arbitrate his claims against Stripes—even if the Election And

Arbitration Agreement is somehow unenforceable. The requisites of Rule 11 having

been satisfied, the Trial Court had only the ministerial duty to enforce the Agreed

Stay Order as written. See Guynn v. Corpus Christi Bank & Trust, 580 S.W.2d 902,

906 (Tex. Civ. App.—Corpus Christi 1979, writ ref’d n.r.e.). As a result, the Trial

Court had no discretion to not enforce the Agreed Stay Order.

VII. STRIPES DID NOT WAIVE ITS ARBITRATION RIGHTS.

As shown in Paragraphs 49-51 of the Statement Of Facts, to protect its

$450,000 subrogation interest, the Plan intervened in this lawsuit pursuant to Texas

Rule of Civil Procedure 60, not Rule not Rule 40. See In re Union Carbide Corp.,

273 S.W.3d 152, 156 (Tex. 2008)(“Permissive joinder and intervention are

authorized and permitted by separate rules, and the rules provide different processes

for addressing the different situations.”). The Plan’s interests were its own and

adverse in many respects to Plaintiff’s and Powell’s/Merrell’s interests. See Union

Carbide, 273 S.W.3d at 155 (intervenors “interject their interests into a pending suit

to which the intervenors have not been invited”); Akins v. Citizens Nat’l Bank, 217

S.W.2d 199 (Tex. Civ. App.—El Paso 1948, writ ref’d)(lien holder had right to

intervene to protect his interest, adverse to both plaintiff and defendant).

- 61 -
 As shown in Paragraphs 52-55 of the Statement Of Facts, Sarles’ questioning

of Plaintiff’s life care plan expert, Dr. Snook, was done expressly as the

representative of the Plan, not Stripes. PX5 at p.2 and p.64. Sarles’ questioning of

Dr. Snook assisted in reducing Plaintiff’s $15 million demand and obtaining the $6

million policy-limits settlement between Plaintiff and Merrell and Powell—a

settlement that was in the Plan’s interest, even if the Plan has not yet recovered its

$450,000 subrogation lien out of the settlement proceeds. A strong presumption

against waiver of arbitration rights exists under Texas law that imposes a “heavy

burden of proof” on the party asserting it to show intentional waiver, a question of

law. In re Bank One, 216 S.W.825, 827 (Tex. 2007); In re D. Wilson Constr. Co.,

196 S.W.3d 774, 783 (Tex. 2006); In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 763

(Tex. 2006); In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex. 1998).

Plaintiff has failed to show how Stripes, which asked Dr. Snook nothing,

intentionally waived Stripes’ arbitration rights. The Trial Court’s temporary

injunction makes no finding or mention of waiver, and it cannot be supported by an

unproved allegation that Sarles, expressly appearing on behalf of the Plan and shown

to be pursuing the Plan’s interest in achieving settlement, somehow was instead

really pursuing Stripes’ defense in the DSI Arbitration. See Perry Homes v. Cull,

258 S.W.3d 580, 593 (Tex. 2008)(waiver can be implied from a party’s conduct, but

the party’s conduct must be unequivocal).

- 62 -
 CONCLUSION

The Trial Court abused its discretion in entering the May 27 and June 8, 2015

temporary injunction orders. Plaintiff’s applications for injunctive relief and the

Trial Court’s injunction orders were all filed in violation of the stay imposed by

Section 171.025 of the Texas Civil Practice and Remedies Code and the Agreed Stay

Order and are void. Plaintiff’s applications for the temporary injunction were not

properly verified and properly filed to be before the Trial Court. Plaintiff failed to

plead and prove a cause of action for injunctive relief against Stripes. The temporary

injunction orders destroyed rather than preserved the status quo between Plaintiff

and Stripes. Plaintiff failed to establish imminent, irreparable harm, because all

arbitrability disputes are to be decided by the DSI arbitrator under the Election And

Arbitration Agreement and the DSI Rules. Having voluntarily initiated the DSI

Arbitration without preserving any right to challenge the DSI arbitrator’s

jurisdiction, Plaintiff has waived any objection under DSI Rule 5. Plaintiff failed to

prove that the courts decide arbitrability, failed to prove that the Election And

Arbitration Agreement is unenforceable, failed to show how Plaintiff’s knowing

acceptance of $450,000 in Plan benefits did not constitute ratification and estoppel,

and failed to articulate an explanation why the Agreed Stay Order does not

independently obligate Plaintiff to arbitrate as a Rule 11 agreement. Finally,

Plaintiff’s waiver argument fails to support the entry of the temporary injunction.

- 63 -
 PRAYER

For these reasons, Appellant requests that this Court vacate or reverse in all

respects the Trial Court’s temporary injunction orders of May 27 and June 8, 2015,

order all further proceedings before the Trial Court stayed pending resolution of the

Parties’ claims and defenses in binding arbitration under the Election And

Arbitration Agreement and DSI Rules in the DSI Arbitration before Arbitrator

Black, and award Appellant its costs on appeal, together with such other and further

relief that the Court deems appropriate.

Dated: July 6, 2015 Respectfully submitted,

/s/ Gary D. Sarles .
Gary D. Sarles
State Bar No. 17651100
SARLES & OUIMET
370 Founders Square
900 Jackson Street
Dallas, Texas 75202
Telephone: (214) 573-6300
Facsimile: (214) 573-6306
gsarles@sarleslaw.com

ATTORNEYS FOR APPELLANT

CERTIFICATE OF SERVICE

In compliance with Texas Rule of Appellate Procedure 9.5, I hereby certify that
a true and correct copy of the foregoing Appellant’s Brief was served on counsel for
Appellee via Eservice on this 6th day of July, 2015.

/s/ Gary D. Sarles .
Gary D. Sarles

- 64 -
 CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. PROC. 9.4(i)(3)

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify
that Appellees’ Brief complies with the word and page limitations of Texas Rule of
Appellate Procedure 9.4(i)(2). According to the word count of the Microsoft Word
2003 word-processing system, this brief contains 14,950 words, excluding the parts of
the brief exempted by Texas Rule of Appellate Procedure 9.4(i)(1).

/s/ Gary D. Sarles .
Gary D. Sarles

- 65 -
 NO. 13-15-00246-CV

IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
AT CORPUS CHRISTI/EDINBURG, TEXAS

Stripes LLC,
Appellant/Defendant,
v.

Hazem Mrayyan,
Appellee/Plaintiff.

On Appeal from County Court at Law Number One of Nueces County, Texas
The Honorable Robert J. Vargas, Judge Presiding

APPELLANT’S APPENDIX

INDEX
Tab No. Description Record Citation

1 Order Granting Plaintiff’s Request For Temporary Injunction 21CR5611-5612

2 Order Modifying Plaintiff’s Temporary Injunction Order SCR18-20

3 Texas Civil Practice and Remedies Code Section 171.025 -

4 Election And Arbitration Agreement and incorporated PX2
Arbitration Procedures from the Summary Plan Description

5 Order Granting Stripes LLC’s Application for Order for Arbitration DX2

6 Dispute Solutions, Inc. Arbitration Rule 5 DX3 at p.2

7 Hazem Mrayyan’s Demand for Arbitration, March 6, 2015 DX4

8 Demand for Arbitration Form, March 19, 2015 DX5
,
--,

i
•~

·~

Cause No. 2013-CCV-61910-1

HAZEM MRAYYAN
01 A
-,
! IN THE COUNTY COURT
~
lr
v. § AT LAW N0.1
§
ERIC SCOTT POWELL,
MERRELL LEASE SERVICE,
INC. AND STRIPES LLC
:
&
DEFENDANTS. § NUECES COUNTY, TEXAS

ORDERc.;;:,;.;;
GRANTING PLAINTIFF'S REQUEST
.

1. After considering Plaintiff's, Hazem Mrayyan's, Plaintiff's First
c, 'Annli _,, th<> nlc."rl;nn" thc.
fnr- '"'In;, ·~
.0..

evidence, and arguments of counsel, the Court finds there is evidence that harm

is imminent to Plaintiff, and if the Court does not issue the temporary injunction,

--pfamfiff w11fl:)e IrreparablY imured because Plaintiff will be subiect to arbitration

proceedings, motions, and hearings that will deprive him of his right to have this

Court decide arbitrability and his right to a jury trial. The Court is of the opinion
. . . . .
LrTaLFTalTlTITT . TOr a Lt:IIIJ.IUidl y lnJUru.;uull (0 Stay arulliiS

GRANTED.

? It ;.,. , IJR th"t thA r.l.,rk nf r.n11rl <::h"ll ;.,..,., u> " Writ

of Injunction pending final hearing on June 4, 2015, enjoining Defendant Stripes,

LLC or any of its officers, agents, servants, employees, attorneys,

represemalives, or any person 1n act1ve concert or part1c1pat1on w1th it who

receives actual notice of this Order by personal service or otherwise are hereby

stayed from participating or engaging in any and all arbitration proceedings,

TAB 1 5611
,
.
•
.
--- ---- ------- ---

'
I

''I

filings, motions, and hearings with Dispute Solutions, Inc. where Stripes, LLC and

Hazem Mrayyan are both named parties to a cause or matter.
I+ . f, .. ~ +h~+ ~n.-1 ~11 .~.
'l riO I .,
" '" '
filings, motions, and hearings are hereby stayed, by way of the Writ of

Injunction, with Dispute Solutions, Inc. where Stripes, LLC and Hazem Mrayyan

are both named parties to a cause or matter.

4. It is therefore ORDERED that the clerk issue notice to Defendant

.:>lllfJt::;, LL\J llli:lli:l llli:ll Ull l i l t : ' " " ' " ' " ll; >;t:LIUI ..JUIIt: "+, &.U lv i:ll IU.UU <:1.111.

5. It is therefore ORDERED that Plaintiff Hazem Mrayyan shall, prior

to the issuance of the in'unction file with the Clerk a bond executed b him in

the sum of .~l£f,_L_f,L__ _,
$_ CIVIL PRACTICE AND REMEDIES CODE > TITLE 7. ALTERNATE
METHODS OF DISPUTE RESOLUTION > CHAPTER 171. GENERAL ARBITRATION
> SUBCHAPTER B. PROCEEDINGS TO COMPEL OR STAY ARBITRATIONS

§ 171.025. Stay of Related Proceeding
(a) The court shall stay a proceeding that involves an issue subject to arbitration if an order for
arbitration or an application for that order is made under this subchapter.
(b) The stay applies only to the issue subject to arbitration if that issue is severable from the
remainder of the proceeding.

History

Enacted by Acts 1997, 75th Leg., ch. 165 (S.B. 898), § 5.01, effective September 1, 1997.

LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.

TAB 3
 214 573 6306 P.05
OCT-09-2014 16:36 SARLES & OU I ~ 2007 Sa~.as & Ou,ma\, L.l,P
EXHlt3IT 2
OCT-09-2014 15:38 SARLES g OU Ir'lET 214 573 5306 P.14

cooperate with the Dispute Solutions, Inc. (or, if the American Arbitration
Association appointed the hearing arbitrator, then the American Arbitration
Associatfon) in providing the record, exhibits and deposition transcripts to the
appellate arbitrators.

f.The appellate arbitrators shall establish a briefing schedule, page
limItations for briefs and a date and duration for oral argument; provided,
however, that prior to the appellate arbitrators' rulings on these subjects, the
parties to the appeal may agree to waive briefing and/or oral argument and may
agree to their own page limitations for briefs.

g. The appell!:~te arbitrators shall apply the same standard of review
as the firstulevel appellate court would apply to the cause of action or defense on
appeal in similar circumstances. If both federal and state~law causes of action
(and/or defenses) are before the appellate arbitrators (either in a single appeal or
as the result of a cross-appeal), the appellate arbitrators shall apply only the
standards of review utilized by the United States Court of Appeals for the Fifth
Circuit in similar circumstances.

h. By majority vote, the appellate arbitrators may affirm, reverse,
render or modify an arbitration award. The appellate arbitrators may remand, but
they may not remand to the original hearing arbitrator. In the event of a remand,
the parties shall select a new hearing arbitrator under the procedures set forth in
the rules governing the arbitration, and the fees and expenses of the new hearing
arbitrator shall be shared equally by the parties to the re-hearing. The appellate
arbitrators' decision shall include a brief, written opinion addressing the issues
before them, and such opinion shall be delivered to the parties and to Dispute
Solutions, Inc. (or, if the American Arbitration Association appointed the hearing
arbitrator, then to the American Arbitration Association) within thirty (30) days
after the conclusion of any briefing schedule or any oral argument or as the
parties may agree. Fifteen (15) days after receipt of the appellate arbitrators'
opinion setting forth their decision, any award by them shall be considered final
for purposes of judicial enforcement, modification or vacation under the Federal
Arbitration Act.

9. Interstate Commerce and the Federal Arbitration Act:
understand and agree that the Company is involved in transactions involving interstate
commerce (e,g" purchasing goods and services from outside Texas which are shipped
to Texas; utilizing the interstate mail, telephone and highway systems; operating
facilities serving people from various states; and recruiting and advertising outside
Texas) and that my employment with the Company and participation in the Plan involve
such commerce, The Federal Arbitration Act, Title 9 of the United States Code, will
govern the interpretation, enforcement, and all judicial proceedings under and/or with
respect to the Election And Arbitration Agreement and Section I, Paragraph B of the
Plan (Section IX of this Summary).

'0 Z007 Sart9&" OW01et. L.L.F,
EXHll3lT 2
 Flied
11/12120144:55:15 PM
Patsy Perez
1 DIstrict Cleric
Nueces Coooty, Texas

CAUSE NO. 2013-CCV-61910-1

IIAZEM MRAYYAN, § IN THE COUNTY COURT
§
Plaintiff, §
§
v. §
§ AT LAW NUMBER ONE
ERIC SCOTT POWELL, §
MERRELL LEASE SERVICE, INC. §
and STRIPES LLC, ' §
§
Defendants. § NUECESCOUNTY,TEXAS

ORDER GRANTING STRIPES LLC'S APPLICATION FOR ORDER FOR ARBITRATION

Defendant Stripes LLC having filed with its Original Answer an Application for Order

for Arbitration requesting a fonnal written order enforcing the automatic stay imposed by Section

171.025(a) of the Civil Practice and Remedies Code on any further proceedings against Stripes

LLC in this lawsuit, the Court is of the opinion that the statutory stay should be fonnalized by

this Order. It is, therefore,

ORDERED that Plaintiff Hazem Mrayyan' s claims and causes of action and all further

proceedings against Defendant Stripes LLC be, and they hereby are, stayed pending resolution of

these two parties' claims, causes of action and defenses in binding arbitration before Dispute

Solutions, Inc. ("DSr') in accordance with their Election And Arbitration Agreement and the DSI

Arbitration Rules.

SIGNEDthi~daY~2014.
DEFENDANT'S
• EXHIBIT
) ~c

ORDER GRANTING STRIPES LLC'S APPLICATION FOR ORDER FOR ARBITRATION- l

TAB 5
l
AGREED AS TO FORM ONLY:

HILLIARD MUJ\lOZ GONZALES LLP

BY:'~~_·_wt&J
__
Robert C. Hilliard
State Bar No. 09677700
Rudy Gonzales, Jr.
State Bar No. 08121700
Catherine D. Tobin
State Bar No. 24013642 Email: dunagan@sal.leslaw.com
Kimberly D. Wilson SARLES & OUIMET
State Bar No. 24066035 370 Founders Square
719 S. Shoreline Boulevard, Ste. 500 900 Jackson Street
Corpus Christi, TX 78401 Dallas, Texas 75202-4436
Telephone No.: (361) 882-1612 Telephone: (214) 573-6300
Facsimile No.: (361) 882-3015 Telecopier: (214) 573-6306

DAVID T. BURKETT ATTORNEYS FOR DEFENDANT
State Bar No. 03410500 . STRIPESLLC
THE BURKETT LAW FIRM
538 S. Tancahua
Corpus Christi, Texas 78401
Tel: (361) 882-8822
Fax: (361) 883-0733

AITORNEYS FOR PLAINTIFF

ORDER GRANTING STRIPES LLC'S APPLICATION FOR ORDER FOR ARBITRA TION-2

-- ... -- , .. - - - - - - - -
_ TAB 5
-----------------------
 DISPUTE SC)LLTTIC)NS, INC.
ARBITRATION RULES
l. NOTIFICATION OF USE OF DSI
Any company intending to incorporate these rules or to refer to the alternative dispute resolution (ADR) services
of Dispute Solutions, Inc. (DSI) in an ADR plan shall, at least 30 days prior to the planned effective date of the
program:
(a) notify DSI of its intention to do so and,
(b) provide DSI with a copy of the alternative dispute resolution plan.
DSI may decline its administrative services to any company that does not comply with this requirement.

2. ApPLICABLE RULES OF ARBITRATION
These rules, as amended from time to time by DSI, shall apply in the form in effect at the time the Demand for
arbitration or joint submission is received by DSI.

3. DSI AS ADMINISTRATOR OF THE ARBITRATION
When parties agree to arbitrate under these rules, or when they provide for arbitration by DSI and an arbitration
is initiated under these rules, they thereby authorize DSI to administer the arbitration. The authority and duties
ofDSI are described in these rules and may be carried out as DSI's representatives may direct.

4. INITIATION OF ARBITRATION
Arbitration shall be initiated in the following manner.
(a) The parties may make a joint submission for arbitration.
(b) In the absence ofajoint submission for arbitration:
(i) The initiating party (hereinafter "Claimant[s]") shall:
(1) File with DSI two (2) copies of a written notice (hereinafter "Demand") of its intention to arbitrate,
within the time limit established by the applicable statute oflimitations. Neither filing nor serving
a lawsuit complies with this requirement. Any dispute over the timeliness of the demand shall be
referred to the arbitrator. The Claimant shall include with the Demand a copy of the applicable
arbitration agreement. The Demand shall set forth the names, addresses, and telephone numbers
of the parties; a brief statement of the nature of the dispute; the amount in controversy, if any; the
remedy sought; and the requested hearing location.
(2) Simultaneously serve a copy of the Demand on the other party (hereinafter "Respondent[s]").
(3) Include with its Demand the applicable filing fee, unless the parties agree to some other method
of fee advancement.
(ii) The Respondent(s) shall file an Answer with DSI within 15 days after service of the Demand. The Answer
shall provide the Respondent's brief response to the Demand. The Respondent(s) shall file the Answer with
DSI and serve a copy on the Claimant. If no Answer is filed within the stated time, Respondent will be
deemed to deny the Demand. Failure to file an Answer shall not delay the arbitration.
(iii) The Respondent(s):
(1) May file with DSI two (2) copies ofa Counterclaim within 15 days after the service of the Demand.
Any Counterclaim shall set forth the nature of the claim, the amount in controversy, if any, and
the remedy sought.
(2) Simultaneously serve a copy of any Counterclaim on the Claimant.
(3) Shall include with its filing the applicable filing fee provided for by these rules.
(iv). The Claimant may file with DSI two (2) copies of an Answer to the Counterclaim within 15 days after
service of the counterclaim. The Answer shall provide Claimant's brief response to the Counterclaim.
The Claimant shall file the Answer with DSI and serve a copy on the Respondent. If no Answer is filed
within the stated time, Claimant will be deemed to deny the Counterclaim. Failure to file an Answer
shall not delay the arbitration.
DEFENDANT'S
DSI'S RULES OF MEDIATION AND ARBITRATION

TAB 6
(Revi se d J a nu ary 20 15

I 3 B1T ge 1
5. JURISDICTION

(a) The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with
respect to the existence, scope or validity of the arbitration agreement.
(b) The arbitrator shall have the power to determine the existence or validity ofa contract that includes an
arbitration clause. Such an arbitration clause shall be treated as an agreement independent of the other
terms of the contract. A decision by the arbitrator that the contract is null and void shall not for that reason
alone render invalid the arbitration clause.
(c) A party must object to the jurisdiction of the arbitrator or to the arbitrability of a claim or counterclaim
no later than the filing of its Answer to the Demand or Counterclaim that gives rise to the objection. The
arbitrator may rule on such objections as a preliminary matter or as part of the final award.

6. ARBITRATION MANAGEMENT CONFERENCE

As soon as practicable, an arbitration management conference shall be held among the parties and/or their
attorneys or other representatives and the arbitrator(s). Unless the parties agree otherwise, the Arbitration
Management Conference will be conducted by telephone conference call. At the Arbitration Management
Conference the matters to be considered shall include, without limitation:
(a) the issues to be arbitrated;
(b) the date, time, place, and estimated duration of the hearing;
(c) the resolution of outstanding discovery issues and establishment of discovery parameters;
(d) the law, standards, rules of evidence, and burdens of proof that are to apply to the proceeding;
(e) the exchange of stipulations and declarations regarding facts, exhibits, witnesses, and other issues;
(f) the names of witnesses (including expert witnesses), the scope of witness testimony, and witness exclusion;
(g) the value of bifurcating the arbitration into a liability phase and damages phase;
(h) the need for a stenographic record;
(i) whether the parties will summarize their arguments orally or in writing;
G) the form of the award;
(k) any other issues relating to the subject or conduct of the arbitration;
(1) the allocation of attorney's fees and costs;
(m) the specification of undisclosed claims;
(n) the extent to which documentary evidence may be submitted at the hearing;
(0) the extent to which testimony may be admitted at the hearing telephonically, over the internet, by written
or video-taped deposition, by affidavit, or by any other means.
The arbitrator shall issue oral or written orders reflecting his or her decisions on the above matters and may conduct
additional conferences when the need arises.

7. DISCOVERY

The arbitrator shall have the authority to order such discovery, by way of disclosures, deposition, interrogatory,
document production, request for admission, request for inspection, or otherwise, as the arbitrator deems necessary
to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration.
If a discovery dispute arises, the parties should notify DSI so that it may be presented to the arbitrator for
determination. See Arbitration Rule 12.

8. FIXING OF LOCALE (DATE, TIME, AND PLACE OF HEARING)

If the parties have not agreed and cannot agree to a location for the arbitration, the arbitrator(s) shall decide. The
arbitrator(s) shall set the date, time, and place for each hearing. The parties shall respond to requests for hearing
dates in a timely manner, cooperate in scheduling the earliest practicable date, and adhere to the established hearing
schedule.

9. NUMBER, QUALIFICATIONS, AND ApPOINTMENT OF ARBITRATORS

(a) If the arbitration agreement does not specify the number of arbitrators or the parties do not agree
otherwise, the dispute shall be heard and determined by one arbitrator.

DSI'S RULES OF MEDIATION AND ARBITRATION (Revised January 2015) Page 2

TAB 6
 Li§.§.QQiqt~§
Marion M. Reilly
*Robert C. Hilliard Neely Balko
Jacobo G. Munoz Todd A. Hunter, Jr.
Catherine D. Tobin Kimberly Wilson
*Rudy Gonzales, Jr. Austin L. Webber
John B. Martinez Emily N. Hilliard
*T. Christopher Pinedo *Alyssa K. Chaplin
Gonzalo Joseph Barrientos Jose Luis Mul"ioz
Hilliard Munoz Gonzales . Qf..(;;OU(lse
719 s. SHORELINE, SUITE 500
Juan Reyna
CORPUS CHRISTI, TEXAS 78401
BUS: (361) 882-1 612 FAX: (361) 882-3015
TOLL: 800-334-3298
www.hmglawfirm.com

March 6, 2015

VIA CMRRR: 7014 28700000 1830 1356
& U.S. REGULAR MAIL
Attn: Executive Vice President
Susser Holdings, LLC
P.O, Box 9036
Corpus Christi, TX 78469

RE: HAZEM MRAVYAN'S DEMAND FOR ARBITRATION

To whom it may concern,

Please be advised that I along with David Burkett represent Hazem Mrayyan in
connection with an incident, which occurred on March 27,2013 while he was working in
the course and scope of his employment for Stripes, LLC at store #2160 in Corpus
Christi, Texas. The incident in question involved a pedestrian/vehicle accident in which
a vehicle driven by Eric Scott Powell, while in the course and scope of his employment
for Merrell Lease Service, Inc., struck and severely injured Hazem Mrayyan while he
was performing his duties as an employee of Stripes, LLC and in the course and scope
of his employment for Stripes, LLC. The incident in question took place on the premises
of the #2160 Stripes store located at Morgan Street and Crosstown in Corpus Christi,
Texas,

As a result of the incident in question, Mr. Mrayyan sustained substantial
personal and bodily injuries_ The incident in question resulted from the negligence of
Stripes, LLC. As a result of the injuries in question, Hazem Mrayyan has suffered
personal injuries and hereby seeks compensation for, but not limited to:

a. Past and future physical pain and mental anguish;
b. Past and future impairment;
c. Past and future disfigurement; DEFENDANT'S
d. Past and future loss of earning capacity; EXHIBIT
e. Past and future lost wages;
f. Past and future medical expenses; and, L-/
. Mr Hllilarcl IS 60,lId Certified In Person,,, IlllllI'l I flail .1W and C,v,l Tflall aw tlV ttle I ex as BOHld "f' egal Specl"lilCl llon
• M, G" r17aJe~ IS 6oa ,d Certlfrerj In Personal lilJllry Tllal l;,w by the Texas Board o f lenal Spec <,"zatlon
' Mr Pillcdo IS IIl:l'llsild 10 practice lAW II' I exas Aflzon" .'!nd (."llfO'III"

TAB 7
' Ms Cha plin IS licensed to practIce In Mass"chusetts
Page 2\ P age

g. Exemplary damages.

Mr. Mrayyan hereby demands arbitration.

This arbitration demand letter serves as formal notice, in accordance with
Section IX(1) of the Susser Holdings, LLC Employee Injury Benefit Plan, to Susser
Holdings, LLC, and all of its officers, directors, shareholders, members, employees,
affiliates, representatives, agents, owners, and/or benefit plans regarding the injuries he
sustained on or about March 27,2013.

This demand for arbitration also serves as notice to Susser Holdings
Corporation, Stripes Holdings, LLC, Applied Petroleum Technologies, Ltd., Stripes No.
1009, LLC, Stripes, LLC, Susser Financial Services, LLC, Stripes Acquisition, LLC
TCFS, Holdings, Inc., Town and Country Food Stores, Inc. Corpus Christi, Reimco,
LLC, Susser Petroleum Company, LLC, T&C Wholesale, Inc., GoPetro Transport, LLC,
SSP BevCo II, LLC, SSP Bev Co I, LLC, SSP Beverage, LLC, TND Beverage, LLC,
C&G Investments, LLC, and Susser Company, Ltd, and all of its officers, directors,
shareholders, members, employees, affiliates, parent companies, representatives,
agents, owners, and/or benefit plans.

If for any reason you believe this notice and demand for arbitration is insufficient
to put you on notice of Plaintiff's claims, please advise me immediately.

Very truly yours,

HILLIARD Mur'loz GONZALES, L.L.P.

~~~~~ ftj;ihl.
Rudy Gonzales

RGlth

CC:

VIA CMRRR: 7Q14 28700000 1t{30 1363
& U.S. REGULAR MAIL
Gary D. Sarles
O. Paul Dunagan
Sarles & Ouimet
900 Jackson Street, Suite 370
Dallas, TX 75202

TAB 7
Page 31 P age

(214) 573-6300
Attorneys for Stripes, LLC &
The Susser Holdings, LLC Employee Injury Benefit Plan

VI~_CIV!RRR: 7014 2870 0000 1830 1370
& U.S. REGULAR MAIL
Dispute Solutions
P.O. BOX 460115
Garland, TX 75046

VIA E-MAIL to:burketta@aol.com
David Burkett
Burkett Law Firm
538 South Tancahua Street
Corpus Christi, TX 78401
(361) 883-6551

VIA E-MAIL toc.Y.-mbj.l~~9JlI1111@#JIH.C!.~J!m
Cynthia Aguirre

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Colleen

From: Wufoo
Sent: Thursday; March 19, 2015 8:17 AM
To: colleen@dsi-adr.com
Subject: Demand For Arbitration Form [#28]

Company Susser Holdings, LLC d/b/a Stripes

Your Name Hazem Mrayyan: Attorney ..., Rudy Gonzales

Your 719 S. Shoreline, SlJ1te 500, Corpus Christi, TX 78401

Address

Email rg group@hmglawfirm.com

Phone (361) 882 - 1612
Number

Supervisor's Guillen

Name

Description of the Employee's Claim against the Company:

On or about Wednesday, March 27, 2013, Plaintiff, HAZEM MRAYYAN, was working at the #2160 Stripes store located at
20,02 Morgan St. in Corpus Christi, Texas in Nueces County. HAZEM MRAYYAN was cleat'ling a fuel tank access opening

or "spill bucket" located near the air pump facility of the Stripes store parking lot. Plaintiff HAZEM MRAYYAN was

working in the course and scope of his employment for Oefendant STRIPES, LLC at the time of the incident

ERIC SCOTT POWELL, was operating a 2004 White Chevrolet C/K 3500 owned by and under the control of MERRELL

LEASE SERVICE, INC. Defendant ERIC SCOTT POWELL Parked n.ear the 'air pump, visited with Plaintiff HAZEM MRAYYAN,

and inflated his tire. After havi.ng actual knowledge of Plaintiff Hf\ZEMMRAYYAN'5 presence and ample opportunity to

observe Plaintiff HAZEM MRAYYAN working in the vicinity, HAZEM MRAYYAN got into his truck and proceeded to run

over Plaintiff HAZEM MRAYVAN causing him substantial bodIly injuries. After running over Plaintiff HAZEM MRAYYAN, he

reversed his truck and ran over Plaintiff a second time.

Plaintiff HAZEM MRAYYAN alleges that Defendant STRIPES, LLC and its' agents, employees arid servants. had a duty to

exercise reasonable care in providing Plaintiff HAZEM MRAYYAN with a safe place to work.

A. Negligence

DEFENDANT'S
1
l EXHIBIT
tL
TAB 8
I
 Plaintiff HAZEM MRAYYAN's injuries and damages, asserted in the current litigation. were proximately caused by
Defendant STRIPES, LLC'S negligence, which either by act or omission, alone or in conjunction with others not listed

herein. were each and all a proximate cause of the accident made the basis of this lawsuit. Defendant STRIPES, LLC was
negligent in the following ways:

a. Failure to provide Plaintiff with a safe workplace;

b. Failure to ensure that its employee performed his work in a safe manner;

c. Failure to properly supervise Plaintiff;

d. Failure to use methods, processes, and safeguards that were reasonably necessary to protect the life, health and
safety of Plaintiff;

e. Failure to provide cones, barricades, or signage to eliminate traffic in the work area for the safety of Plaintiff;

f. Failure to provide a brightly colored vest for Plaintiff to wear; and

g. Failure to provide necessary safety training to Plaintiff

B. Gross Negligence

Plaintiff repeats and incorporates by reference all other paragra,phs of this Petition as if fully set forth herein.

Defendant's acts and omissions constituted gross negligence, and directly and proximately caused Plaintiff's injuries.

Moreover, Defendant demonstrated conscious indifference to the safety and welfare of plaintiff for actions and

omissions that amount to gross negligence. Defendant is liable to Plaintiff for gross. negligence -to wit:

a. Defendant consciously and/or deliberately engaged in recklessness, Willfulness, wantonness and/or malice through

Defendant's actions, and/or inactions as stated herein and Defendant should be held liable in punitive and exemplary

damages to Plaintiff.

b. Defendant's actions or inactions directly and proximately caused injury to Plaintiff. which resulted in the damages

detailed below.

Gross negligence" according to Texas Civil Practice & Remedies Code § 41.00 J(ll)(A)-(B) means an act or omission:

2

TAB 8
a) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme

degree of risk, considering the probability and magnitude of the potential harm to others; and

b) of which the actor has actual, subjective awareness of the risk involved. but nevertheless proceeds with conscious

indifference to the rights, safety, or welfare of others.

As a result of such gross negligence of Defendant. the Plaintiff is entitled to exemplary damages.

The names Plaintiff - Hazem Mrayyan
of the Eric Scott Powell
persons Merrell Lease Service, Inc.
involved: Stripes, LLC - Defendant
Susser Holdings, LLC d/b/a Stripes - Defendant

Relief sought by the Employee:

DAMAGES

As a direct and proximate result of the occurrence made the basis of this lawsuit, Mr. Mrayyan suffered severe personal

injuries and incurred the following damages:

a. Past and future physical pain and mental anguish;

b. Past and future loss of earning capacity;

c. Past and future lost wages;

d. Past and future disfigurement;

e. Past and future medical expenses;

f. Past and future physical impairment;

g. Past and future loss of consortium;

3

TAB 8
h. Past and future loss of household services.

EXEMPLARY DAMAGES

The conduct of Stripes was more than momentary thoughtlessness, inadvertence, or error of judgment, and was of such

a character as to make Stripes gl)ilty of gross negligence. Stripes' acts and or omissions involved an extreme degree of

risk, considering the probability and magnitude of the potentia! harm to others of which Stripes had actual awareness,

but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others, and Mr. Mrayyan

therefore sues for the maximum amount of exemplary damages .

..

•

4

TAB 8