| TERMINOLOGY: | contractual arbitration | arbitration clauses | arbitration award | arbitration agreement | statutory arbitration | signatories and nonsignatories to arbitration agreements | third-party beneficiary | motion to compel arbitration | suit or application to confirm arbitration award | petition to set aside or vacate arbitration award | enforceability of arbitration agreement | Texas Arbitration Act (TAA) | Federal Arbitration Act (FAA) | waiver of right to arbitrate | Arbitration Association | arbitration awards | mandamus relief | interlocutory appeal | Texas Supreme Court takes victory away from consumers who prevailed in arbitration Perry Homes v. Cull, No. 05-0882 (Tex. May 2, 2008)(Opinion by Scott A. Brister) (arbitration award to consumers set aside by Texas Supreme Court on waiver theory) Justice O'Neill delivered a concurring opinion in Perry Homes vs. Cull. Justice Johnson wrote an opinion concurring and dissenting in part, which was joined by Chief Justice Jefferson and Justice Green Justice Willett delivered a separate opinion in Perry Homes v. Culls In Re CitiGroup Global Markets, Inc., No. 06-0886 (Tex. May 16, 200)(per curiam) (arbitration compelled, no waiver found) No interlocutory appeal of order denying confirmation of arbitration award and directing rehearing RECENT CASES FROM THE FIRST AND FOURTEENTH COURT OF APPEALS ODL Services, Inc. v. Conoco Phillips Co. (Tex.App.- Houston [1st Dist.] Aug. 14, 2008)(Taft) (arbitration, whether FAA applies, arbitrability, motion to stay arbitration, challenge to findings of fact) AFFIRM TC JUDGMENT: Opinion by Justice Taft Before Justices Taft, Jennings and Bland 01-08-00020-CV ODL Services , Inc. v. Conoco Phillips Company Appeal from 295th District Court of Harris County Trial Court Judge: Hon. Tracy Christopher In Re Lawson (Tex.App.- Houston [14th Dist.] July 31, 2008)(Fowler) (arbitration mandamus granted) MOTION OR WRIT GRANTED: Opinion by Justice Fowler Before Justices Fowler, Frost and Seymore 14-07-00429-CV In Re: Donald Lawson, Individually and d/b/a V.I.P. Home Inspections and Mark Guillerman Appeal from 165th District Court of Harris County Trial Court Judge: Elizabeth Ray INTERLOCUTORY APPEAL in same case DISMISSED: Opinion by Justice Fowler Before Justices Fowler, Frost and Seymore 14-07-00324-CV Donald Lawson, Individually and d/b/a V.I.P. Home Inspections and Mark Guillerman v. Larry Archer and Wife Susan Archer--Appeal from 165th District Court of Harris County Travelers Indemnity Co. v. Texas Municipal League (Tex.App.- Houston [1st Dist.] July 17, 2008)(Keyes) (disputes over arbitration) (no express agreement to arbitrate, motion to compel arbitration denied) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Chief Justice Radack, Justices Keyes and Higley 01-08-00062-CV Travelers Indemnity Company v. Texas Municipal League Joint Self-Insurance Fund, for itself and as Subrogee of the City of Bunker Hill Village Appeal from 125th District Court of Harris County Trial Court Judge: Hon. John Coselli In Re Bison Building Materials (Tex.App.- Houston [1st Dist.] June 26, 2008)(Radack) (opinion in pdf) (arbitration mandamus, employment, workplace injury, no waiver of right to arbitrate found) GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Bland 01-07-00003-CV In re Bison Building Materials, Ltd. Appeal from 212th District Court of Galveston County Trial Court Judge: Hon. Susan Elizabeth Criss TransAmerica Occidental Life Insurance Company v. Rapid Settlements (Tex.App.- Houston [1st Dist.] July 3, 2008)(Bland) (confirmation of arbitration award against nonparty was error) REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Bland Before Chief Justice Radack, Justices Jennings and Bland 01-07-00137-CV TransAmerica Occidental Life Insurance Company and TransAmerica Annuity Service Corporation v. Rapid Settlements Appeal from County Civil Court at Law No 1 of Harris County Trial Court Judge: Hon. Jack Cagle TransAmerica Occidental Life Insurance Company v. Rapid Settlements (Tex.App.- Houston [1st Dist.] July 3, 2008)(Bland) (restricted appeal, order confirming arbitration award) REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Bland Before Chief Justice Radack, Justices Jennings and Bland 01-07-00195-CV Transamerica Occidental Life Insurance Company and Transamerica Annuity Service Corporation v. Rapid Settlements, Ltd. Appeal from County Civil Court at Law No 2 [?] of Harris County Trial Court Judge: Hon. Jack Cagle Melendez v. De Lemos (Tex.App. - Houston [1st Dist.] May 22, 2008)(Radack) (construction law, summary judgment, arbitration) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Bland 01-07-00115-CV Roberto Melendez v. David and Helen De Lemos Appeal from 189th District Court of Harris County Trial Court Judge: Hon. William R. Burke, Jr. Attorneys: William M. Walls, William B. Westcott, David D. Peden Nancy Hahn Elliott In re Jindal Saw Limited (Tex.App.- Houston [1st Dist.] May 22, 2008)(Alcala) (workplace safety, occupational injury, worker's comp, nonsubscriber, arbitration, wrongful death, survival action) GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala Before Justices Taft, Keyes and Alcala 01-07-01068-CV In re Jindal Saw Limited, Jindal Enterprises LLC, and Saw Pipes USA Appeal from Probate Court No 1 of Harris County Trial Court Judge: Hon. Russell Austin Attorneys: Levi G McCathern II, Jeffrey Christopher Wright | Attorney Kurt B. Arnold, Marvin B. Peterson, Micajah Daniel Boatright Mason v. Mason (Tex.App. Houston [14th Dist.] May 15, 2008)(per curiam) (family court arbitration, no interlocutory appeal of motion to confirm arbitration award in family law case) DISMISSED: Per Curiam 14-07-00991-CV Jason S. Mason v. Patricia A. Mason Appeal from 308th District Court of Harris County Trial Court Judge: Judge Georgia Dempster In Re MHI Partnership, Ltd (Tex.App.- Houston [14th Dist.] Apr. 23, 2008)(Justice Bill Boyce) (arbitration mandamus, motion to compel arbitration, homebuilder complaints about contamination) MOTION OR WRIT GRANTED: Opinion by Justice Boyce Before Chief Justice Hedges, Justices Anderson and Boyce 14-07-00851-CV In Re: MHI Partnership, Ltd. Appeal from 11th District Court of Harris County Trial Court Judge: Mark Davidson Llorance v. Sohi (Tex.App.- Houston [1st Dist.] Apr. 17, 2008)(Higley) (family law SAPCR modification, default arbitration order affirmed) AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Justices Nuchia, Hanks and Higley 01-07-00840-CV Leezet Llorance v. Farhad Safavi Sohi Appeal from 257th District Court of Harris County Trial Court Judge: The Honorable Judy L. Warne Aspen Technology, Inc. v. Shasha (Tex.App.- Houston [1st Dist.] Mar. 27, 2008)(Frost) (interlocutory appeals dismissed, arbitration mandamus granted) DISMISSED: Opinion by Justice Frost 14-07-00303-CV Aspen Technology, Inc. v. Abe Shasha Appeal from 165th District Court of Harris County Trial Court Judge: Hon. Elizabeth Ray In re Aspen Technology, Inc. (Tex.App.- Houston [1st Dist.] Mar. 27, 2008)(Frost) (arbitration mandamus granted) MOTION OR WRIT GRANTED: Opinion by Justice Frost 14-07-00469-CV In Re Aspen Technology, Inc. Appeal from 165th District Court of Harris County Trial Court Judge: Judge Elizabeth Ray Engineer v. Engineer (Tex.App.- Houston [14th Dist.] Mar. 20, 2008)(subst. opinion by Seymore) (mediated settlement agreement) (decree did not vary from, but gave effect to MSA and arbitration award) AFFIRMED: Opinion by Justice Seymore 14-06-01099-CV Katy Engineer v. Mike Engineer Appeal from 387th District Court of Fort Bend County Trial court judge: Hon. Robert J. Kern Engineer v. Engineer No. 14-06-01099-CV Tex.App.- Houston [14th Dist.] Jan. 15, 2008)(Superseded Opinion by Seymore) (family law arbitration, divorce, property division, mediated settlement agreement, arbitration award) AFFIRMED: Opinion by Justice Seymore Katy Engineer v. Mike Engineer Appeal from 387th District Court of Fort Bend County (Judge Robert J. Kern) In Re Weeks Marine, Inc. (Tex.App.- Houston [14th Dist.] Dec. 19, / 20 2007)(Seymore)(arbitration) GRANTED IN PART AND DENIED IN PART: Opinion by Justice Seymore Appeal from 215th District Court of Harris County (Hon. Levi James Benton) The order denying arbitration cannot be sustained on any ground considered by the trial court. Accordingly, we conditionally grant Weeks Marine's petition insofar as it requests us to instruct the trial court to vacate the order. We are confident the trial court will vacate its October 31, 2006 order denying Weeks Marine's motion to compel arbitration and its May 3, 2007 order denying Weeks Marine's motion for reconsideration. The writ of mandamus will issue only if the trial court fails to comply. The procedural unconscionability issue is not, as Weeks Marine contends, for the arbitrator to decide. The issue is for the trial court to decide, but the trial court has either not made a decision or made a decision on disputed affidavit testimony without the requisite evidentiary hearing. In either event, we are unable to direct entry of an order compelling arbitration while disputed issues of fact remain unresolved. Accordingly, we deny the petition insofar as Weeks Marine requests us to instruct the trial court to compel arbitration. In Re Studio 8 Floors & Walls, Inc. (Tex.App.- Houston [14th Dist.] Nov. 8, 2007)(per curiam) (arbitration case mandamus, motion to compel arbitration should have been granted) MOTION OR WRIT GRANTED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Seymore 14-07-00764-CV In Re: Studio 8 Floors & Walls, Inc Appeal from Co Civil Ct at Law No 4 of Harris County (Roberta Anne Lloyd) Dixon Financial Services, Ltd. v. Greenberg, Peden Siegmyer & Oshman, PC (Tex.App.- Houston [1st Dist.] Nov. 15, 2007)(Higley)(arbitration award, severance) AFFIRM TC JUDGMENT: Opinion by Justice Higley 01-06-00696-CV Dixon Financial Services Ltd., and Hyperdynamics Corporation v. Greenberg, Peden, Siegmyer & Oshman, P.C., Gerald Siegmyer, Ron Bearden, and R. F. Bearden Associates, Inc. Appeal from 215th District Court of Harris County (Hon. Levi J. Benton) In Re Igloo Products Corp. (Tex.App.- Houston [14th Dist.] Nov. 1, 2007)(Frost)(arbitration mandamus denied) MOTION OR WRIT DENIED: Opinion by Justice Frost In this original proceeding, relators Igloo Products Corporation and Jose Rodriguez seek a writ of mandamus directing the respondent, Dan R. Beck, presiding judge of the 155th District Court of Waller County, (1) to vacate his January 9, 2007 order denying relators' motion to compel arbitration, and (2) to grant relators' motion to compel arbitration of all claims pending in the action and to stay trial court proceedings pending such arbitration. We deny the petition for writ of mandamus. Can order denying confirmation of award be challenged in interlocutory appeal? In Re Thrivent Financial for Lutherans (Tex.App.- Houston [1st Dist.] Nov. 1, 2007)(Higley)(motion to confirm arbitration award denied, order for rehearing by different arbiter, no interlocutory appeal jurisdiction) suit to confirm arbitration award, due process, notice, securities) DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Higley 01-07-00484-CV In re Thrivent Financial For Lutherans Appeal from County Court at Law of Austin County (Hon. June Jackson) Ins. Co. v. Jack Apple, (Tex.App. - Houston [1st Dist.] Oct. 25, 2007) Daimler Chrysler Ins. Co. v. Apple (Tex.App.- Houston [1st Dist.] Oct. 25, 2007)(Alcala)(insurance coverage dispute, breach of contract, indemnity) AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Justices Taft, Jennings and Alcala 01-05-01115-CV Diamler Chrysler Insurance Company f/k/a Chrysler Insurance Company v. Jack Apple, Jr. and Greenspoint of Dodge of Houston, Inc. Appeal from 295th District Court of Harris County (Hon. Tracy Christopher) Burlington Resources Oil & Gas Co. LP v. San Juan Basin Royalty Trust, Houston [1st Dist.] Aug 16, 2007) W. Dow Hamm III Crop. v. Millenium Income Fund, LLC, 237 S.W.3d 745 (Tex.App.- Houston [1st Dist.] Jul. 12, 2007) Mandamus in bid to avoid arbitration denied In Re Meshark Omoruyi (Tex.App.- Houston [14th Dist.] May 31, 2007)(per curiam) [arbitration mandamus] MOTION OR WRIT DENIED: Per Curiam (Before Justices Anderson, Fowler and Frost) 14-07-00363-CV In Re: Meshark Omoruyi Appeal from 333rd District Court of Harris County (Judge Joseph J. Halbach) Party waived right to arbitrate, if any Interconnex, Inc. v. Ugarov, 224 S.W. 3d 523 (Tex.App. - Houston [1st Dist.] May 3, 2007) Interconex, Inc. v. Ugarov (Tex.App.- Houston [1st Dist.] May 3, 2007)(Jennings) [jury, exclusion of evidence, causal nexus, arbitration] REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Jennings 01-05-00524-CV Interconex, Inc., d/b/a Interdeaninterconex v. Nick Ugarov Appeal from 280th District Court of Harris County (Judge Tony Lindsay) Interconex acted inconsistently with its right to arbitrate by failing to timely answer the lawsuit after it had been served through its registered agent and by failing to move for arbitration before its liability had been established. Moreover, it acted inconsistently with its right to arbitrate when it requested that the case be reset from its existing October trial date to a December 13, 2004 jury trial on the issue of damages. It did not file its motion to compel arbitration until shortly before the jury trial, which Interconex had specifically requested and caused to be set in December 2004. Accordingly, we conclude that Interconex had substantially invoked the judicial process before it moved to compel arbitration. Court of Appeals Enforces Arbitration in Homeowners' Suit over Contaminated Land TMI, Inc. v. Brooks, 225 S.W.3d 783 )Tex. App.- Houston [14th Dist] May 10, 2007) TMI, Inc v. Brooks (Tex.App.- Houston [14th Dist.] May 10, 2007)(Anderson) (arbitration) (subst. opinion) (homeowner case law, arbitration) Alleging their homesites had been environmentally contaminated, the homeowners sued Trendmaker and other entities for failing to disclose the former presence of oil and gas operations on the property.[1] Trendmaker moved to compel arbitration pursuant to an arbitration provision in the purchase agreements signed by the homeowners. Concluding the arbitration provision was procedurally and substantively unconscionable, the trial court denied Trendmaker]s motion. . . . Because we determine the homeowners' claims fall within the scope of the arbitration agreement and they have not established their unconscionability defense, we reverse the trial court.s May 13, 2005 order. We remand this case for further proceedings consistent with this opinion. Denial of Motion to Compel Arbitration Affirmed - Motion Not Timely, Counterclaim Asserted Nova Info Systems v. Nidhi (Tex.App.- Houston [14th Dist.] Mar. 29, 2007)(Anderson)(denial of motion to compel arbitration affirmed) A party to an arbitration agreement can waive its contractual right to compel arbitration of a dispute in two ways. A party can waive arbitration if that party delays seeking to compel arbitration and the delay results in prejudice; or if that party substantially invokes the judicial process and the opposing party suffers prejudice as a result. Prudential Securities, Inc. v. Marshall, 909 S.W.2d 896, 898-99 (Tex. 1995); Associated Glass, Ltd. v. Eye Ten Oaks Investments, Ltd., 147 S.W.3d 507, 514 (Tex. App.-San Antonio 2004, no pet.). Here, Nova filed its special appearance in April 2002. Nova then waited approximately thirty months before it filed its motion to compel arbitration in October 2004, soon after requesting and receiving a continuance of the original trial setting. In the interim, Nova filed its original answer with affirmative defenses as well as a counterclaim against appellee. In addition, Mr. Sowada, as well as the other defendants, were not parties to the arbitration agreement and did not join the motion to compel arbitration which, if it had been granted, would have required appellee to pursue its claims simultaneously in two different forums. These facts support the trial court's findings that (1) Nova unreasonably delayed in filing its motion to compel arbitration; (2) Nova substantially invoked the judicial process; and (3) appellee was prejudiced as a result of Nova's actions. Accordingly, the trial court did not abuse its discretion when it denied appellants' motion for new trial. See In re E. I. DuPont de Nemours & Co., 136 S.W.3d at 223. We overrule appellants; first issue. In re Meena Matthews (Tex.App.- Houston [1st Dist.] Mar. 29, 2007)(Higley)(arbitration) Mathews v. USA Employment LLC (Tex.App.- Houston [1st Dist.] Mar. 29, 2007)(Higley)(employment, arbitration) In Re Rapid Settlements, Ltd. (Tex.App.- Houston [14th Dist.] Mar. 29, 2007)(per curiam denial)(arbitration, mandamus) Arbitration Agreement Enforced McReynolds v Elston (Tex.App.- Houston [14th Dist.] Mar. 27, 2007)(Yates)(arbitration) REVERSED AND REMANDED: Opinion by Justice Brock Yates Before Justices Brock Yates, Anderson and Hudson 14-06-00974-CV L. Bland McReynolds and Judith Bauman v. Lanelle Elston Appeal from 129th District Court of Harris County Trial Court Judge: Samuel Grant Dorfman In this consolidated interlocutory appeal and mandamus proceeding, appellants L. Bland McReynolds and Judith Bauman challenge the trial court's order denying their motion to compel arbitration. We deny the petition for writ of mandamus and reverse and remand the trial court's order under our interlocutory appellate jurisdiction. We conclude the trial court erred in denying McReynolds’s motion to compel the Goldberg Arbitration and stay the AAA Arbitration. Elston’s claims fall under the scope of the Settlement Agreement’s arbitration provision because of the broad nature of the clause and the Settlement Agreement. McReynolds did not waive his right to the Goldberg Arbitration because he did not substantially invoke the AAA Arbitration to Elston’s prejudice. Therefore, we sustain McReynolds’s issues, and we reverse and remand the trial court’s interlocutory order for proceedings consistent with this opinion Confirmation of arbitration award affirmed on appeal - court rejects lack of proper notice argument Tan v. Lee (Tex.App.- Houston [14th Dist.] Feb. 27, 2007)(Hedges)(arbitration, securities fraud, motion to confirm arbitration award, arbitration award confirmed; lack of notice, rebuttable presumption of notice argument and due process challenges rejected) AFFIRMED: Opinion by Chief Justice Hedges 14-06-00319-CV Ying Chun Tan v. Hung Pin Lee Appeal from 55th District Court of Harris County (Hon. Jeff Brown) In re: Energy Maintenance Services Group LLC (Tex.App.- Houston [14th Dist.] Feb. 27, 2007)(per curiam denial)(arbitration mandamus denied) MOTION OR WRIT DENIED: Per Curiam Before Justices Anderson, Hudson and Guzman 14-06-01085-CV In Re: Energy Maintentance Services Group LLC Appeal from 400th District Court of Fort Bend County (Honorable Clifford Vacek) Yuen v. Fisher, 227 S.W.3d 193 (Tex.App.- Houston [1st Dist.] Feb. 22, 2007)(Bland) (special appearance) AFFIRM TC JUDGMENT: Opinion by Justice Bland (Before Chief Justice Radack, Justices Jennings and Bland) 01-06-00010-CV Xenos Yuen v. Fleishman & Fisher and Barry A. Fisher Appeal from 333rd District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Bland Before Chief Justice Radack, Justices Jennings and Bland 01-06-00010-CV Xenos Yuen v. Fleishman & Fisher and Barry A. Fisher Appeal from 333rd District Court of Harris County Sydow v. Verner, Liipfert, Bernhard, McPherson and Hand, Chartered, 218 S.W.3d 162 (Tex.App. - Houston [14th Dist .] Jan. 25, 2007 Sydow v. Verner, Liipfert, Bernhard, McPerson and Hand, No. 14-05-00877-CV (Tex.App.- Houston [14th Dist.] Jan. 25, 2007)(Hedges) (arbitration law, confirmation of arbitration award) AFFIRMED: Opinion by Chief Justice Hedges 14-05-00877-CV Michael D. Sydow v. Verner, Liipfert, Bernhard, McPherson and Hand, Chartered Appeal from 55th District Court of Harris County (Judge Jeff Brown) |
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