by Eleanor Mason, Staff Attorney for Justice Hassan, Fourteenth Court of Appeals

Berry Y&F Fabricators, LLC v. Bambace, 604 S.W.3d 482 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (Jewell, J.). 

In Berry Y&F Fabricators, LLC v. Bambace, the Fourteenth Court of Appeals analyzed an arbitration agreement and provided guidance with respect to who decides – a court or an arbitrator – public policy arguments that challenge whether certain claims may be compelled to arbitration.   

Stefani Bambace sued her former employer, Berry Y&F Fabricators (Berry), asserting claims for sexual harassment, discrimination, and retaliation. Berry moved to abate the case and compel arbitration. The trial court signed an order granting Berry’s request to compel arbitration. After the 2018 general election, a successor trial judge assumed the bench and vacated the order compelling arbitration. Denying Berry’s plea in abatement and motion to compel arbitration, the trial court concluded that the parties’ arbitration agreement was void and unenforceable because it required Bambace to litigate her sexual harassment claims in confidential and binding arbitration in violation of Texas public policy. Berry appealed the trial court’s decision. 

In relevant part, the standalone arbitration agreement states that the parties:[A]gree that upon demand of either . . . all disputes, claims, damages, injuries, losses, and causes of action . . . shall be submitted to binding arbitration . . . .  To also be included in matters subject to arbitration shall be any question or dispute concerning whether any Claims are subject to arbitration.”  (emphasis added). 

Reversing the trial court’s denial of Berry’s plea in abatement and motion to compel, the court held that the parties “clearly and unmistakably delegated to the arbitrator any questions or disputes concerning the validity or enforceability of the arbitration agreement.” The court rested its conclusion on two bases:  First, the arbitration agreement referred to arbitration “any question or dispute” regarding what claims are subject to arbitration. Second, the agreement incorporated the American Arbitration Association rules, which specifically empower the arbitrator to decide issues of arbitrability, including the agreement’s validity or enforcement.   

Continuing on, the court stated that it may not intervene where an arbitration agreement delegates to the arbitrator questions of validity or enforcement unless the party opposing arbitration “challenges the delegation clause specifically on legal or public policy grounds.” Although Bambace argued that being compelled to arbitrate sexual harassment claims violates public policy, she “presented no challenge to the delegation clause on any ground.” The court concluded that it had “no choice but to leave the parties to their commitment to have the arbitrator decide Bambace’s public policy challenge to the enforceability of the arbitration agreement.” 


Douglas v. Aguilar, 599 S.W.3d 105 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (Zimmerer, J., majority).  

In Douglas v. Aguilar, the Fourteenth Court of Appeals reversed the trial court’s directed verdict in favor of the plaintiff, concluding that the defendant’s acceptance of responsibility with respect to the parties’ car accident did not warrant a directed verdict on the issue of negligence.    

Lissa Douglas was driving on the freeway when she changed lanes and struck a car driven by Maria Aguilar. Aguilar sued Douglas asserting a claim for negligence. The parties proceeded to a jury trial.   

During her testimony at trial, Douglas assumed responsibility for the accident and stated:  “I am not disputing my responsibility in the accident at all. It was my responsibility I had an accident. I made a mistake.” Aguilar also testified that, after the accident, Douglas “admitted she was at fault.” Arguing that this evidence established that Douglas took responsibility for the accident, Aguilar moved for a directed verdict on the issue of negligence. The trial court granted Aguilar’s motion.   

Reversing the directed verdict, the court emphasized that, “where there is evidence that the driver exercised some care, the jury determines whether a reasonably prudent driver would have acted in the same way.” The court pointed out that, according to Douglas’s testimony, she checked her surroundings and mirrors before she changed lanes but did not see Aguilar’s car. Concluding that this constituted “some evidence that Douglas did what a person of ordinary prudence would have done under the same or similar circumstances,” the court held that the jury reasonably could have believed that Douglas did not act negligently despite her acceptance of responsibility.   

Justice Hassan authored a brief dissent stating that, following Ginn v. Pierce, 595 S.W.3d 762 (Tex. App.—Houston [14th Dist.] 2019, no pet.), in the absence of evidence of contributory negligence, she would have affirmed the trial court’s ruling.