WYLIE INDEPENDENT SCHOOLFROM A DISTRICT COURT DISTRICT, APPELLANT, v. TMC FOUNDATIONS, INC., APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00429-CV
 
WYLIE INDEPENDENT SCHOOLFROM A DISTRICT COURT
DISTRICT,
 
        APPELLANT,
 
v.
 
TMC FOUNDATIONS, INC.,                        
 
        APPELLEE.OF COLLIN COUNTY, TEXAS
 
 
BEFORE JUSTICES HOWELL, STEWART AND THOMAS
DISSENTING OPINION BY JUSTICE HOWELL
MARCH 21, 1989
        I dissent. This intermediate Court is neither the Supreme Court nor is it the Legislature. It is not our province to throw out the common law rule that has served our state and nation from the beginning.
        The discussion by the majority of alternative dispute resolution ADR is misplaced. ADR involves efforts to divert existing disputes from the judicial system. Those efforts should continue unabated. The movement in favor of ADR has no connection whatever with the question whether this State should, either by judicial fiat or by legislative action, abandon the common law rule to the effect that agreements executed before a dispute arises, which call for arbitration, cannot be specifically enforced.
        Contractual provisions for arbitration would not be subject to criticism nearly as much if the bargaining power of all contract parties were equal, or if we could devise a system where arbitration agreements would only be enforceable if it is shown that the bargaining power of the parties was, in fact, equal.
        Unfortunately, the trend continues toward the insertion of arbitration provisions into insurance policies, employment agreements (or worse yet, the back sides of employment applications), contracts for the sale of homes, autos and other consumer goods, finance contracts, real estate listing contracts, stock brokers' "New Account Agreement[s]," bank signature cards, mortgages, and numerous other "contracts of adhesion." Inevitably, the decision of our majority will do nothing but accelerate the proliferation.
        It is to be emphasized that the common law rule has never limited arbitration between consenting parties. If the consumer desires to abide by an arbitration provision found in fine print on the back side of his auto dealer's "New Car Order Form," he certainly may do so. Likewise, if a building contractor is charged with botching up the remodeling of the consumer's home, and the consumer is thereafter persuaded to arbitrate the dispute in order to hold down expense and materially shorten the time necessary to conclude the matter, the common law rule is no bar to the enforcement of a post-dispute arbitration agreement once made. The real problem lies in defining the conditions under which a customer will be held to an arbitration clause inserted into the boilerplate language of some vendor's printed form.
        This opinion is written completely without citation of authority in order to illustrate that the question before us is purely one of public policy. Our system demands that this policy question be decided in the halls of the Legislature. In this writer's view, parties who insert arbitration provisions into contracts before any dispute has arisen should be burdened to secure from the opposing party, after the dispute has arisen, a ratification of the arbitration agreement. Thereafter, and only after ratification has been effected, in harmony with the movement in favor of alternate dispute resolution, should the agreement be specifically enforced.
        I dissent. The injunction should be granted.
                                                  
                                                  CHARLES BEN HOWELL
                                                  JUSTICE
 
PUBLISH
TEX. R. APP. P. 90
88-00429.DF
 
 
File Date[01-02-89]
File Name[880429]