Petition for Writ of Mandamus =
Conditionally=20
Granted and Memorandum Opinion filed November 8, =
2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-07-00764-CV
____________
IN RE STUDIO 8 FLOORS & WALLS, INC., =
Relator
ORIGINAL=20
PROCEEDING
WRIT OF=20
MANDAMUS
M E M O R=20
A N D U M O P I N I O N
In this original =
proceeding, relator asks this Court to compel the Honorable =
Roberta A.=20
Lloyd, presiding judge of Harris County Civil Court at Law No. 4 =
to (1)=20
vacate the August 8, 2007, order denying relator=3Ds motion to compel =
arbitration=20
in trial court cause number 888,319 styled Dolores Mora v. =
Studio 8=20
Floors & Walls, Inc.; and (2) enter an order granting the =
motion=20
and compelling arbitration. Relator claims the trial court =
abused=20
its discretion by denying relator=3Ds motion and there is =
no=20
adequate remedy by appeal. We conditionally grant the=20
writ.
Mandamus relief is =
available if=20
the trial court abuses its discretion, either in resolving factual =
issues=20
or in determining legal principles when there is no other adequate =
remedy=20
by law. Walker v. Packer, 827 S.W.2d 833, 839-40 =
(Tex.=20
1992). A trial court abuses its discretion if it reaches a =
decision=20
so arbitrary and unreasonable as to amount to a clear and =
prejudicial=20
error of law, or if it clearly fails to correctly analyze or apply =
the=20
law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d =
379, 382=20
(Tex. 2005).
The underlying suit =
is for=20
breach of a contract to install floor and wall tile in the real =
party=20
plaintiff=3Ds kitchen. The =
contract=20
at issue contains the following statement:
Should there be any disputes between the =
parties,=20
client agrees on arbitration as a means to resolve the conflict =
and will=20
NOT resort to lawsuit for resolution.
Relator moved to =
compel=20
arbitration under the Federal Arbitration Act. The trial =
court=20
denied the motion, and relator filed this proceeding. On =
September=20
21, 2007, we ordered all proceedings in the underlying action =
stayed=20
pending our decision on relator=3Ds =
petition.
Relief from a denial =
of=20
arbitration sought under the Federal Arbitration Act must be =
pursued by=20
mandamus. EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 91 =
(Tex.=20
1996). AMandamus is proper to =
correct a=20
clear abuse of discretion when there is no adequate remedy by =
appeal, as=20
when a party is erroneously denied its contracted‑for =
arbitration rights=20
under the FAA.@ In re D. =
Wilson=20
Constr. Co., 196 S.W.3d 774, 780 (Tex. 2006). A trial =
court has=20
no discretion in determining what the law is or applying the law =
to the=20
facts. Walker, 827 S.W.2d at 840.
Federal and state law =
strongly=20
favor arbitration. Jack B. Anglin v. Tipps, 842 =
S.W.2d 266,=20
268 (Tex. 1992). A presumption exists in favor of agreements =
to=20
arbitrate under the FAA, and courts must resolve any doubts about =
these=20
agreements in favor of arbitration. Cantella & Co. v. =
Goodwin, 924 S.W.2d 943, 944 (Tex. =
1996).
A party seeking to =
compel=20
arbitration by a writ of mandamus must (1) establish the existence =
of a=20
valid agreement to arbitrate under the FAA, and (2) show that the =
claims=20
in dispute are within the scope of the agreement. In re =
Kellogg=20
Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005). =
AWhether a valid =
arbitration=20
agreement exists is a legal question subject to de novo=20
review.@ D. Wilson =
Constr.=20
Co., 196 S.W.3d at 781.
Under the FAA, absent =
unmistakable evidence that the parties intended the contrary, it =
is the=20
courts rather than arbitrators that must decide Agateway =
matters@ such as whether a =
valid=20
arbitration agreement exists. In re Weekley Homes, =
L.P., 180=20
S.W.3d 127, 130 (Tex. 2005). Claims must be brought on the =
contract=20
(and arbitrated) if liability arises solely from the contract or =
must be=20
determined by reference to it. Id. at 132.
Although an =
arbitration=20
agreement does not have to assume any particular form, the =
language of the=20
agreement must clearly indicate the intent to arbitrate. =
See=20
Massey v. Galvan, 822 S.W.2d 309, 316 (Tex. App.CHouston [14th Dist.] =
1992, writ=20
denied). The language in the arbitration agreement at issue =
is=20
clear, and the contract was signed by the real party. The =
suit is=20
for breach of contract; therefore, the claims in dispute are =
clearly=20
within the scope of the agreement.
The FAA applies to =
all suits in=20
state or federal court when the dispute concerns a Acontract evidencing a =
transaction involving commerce.@ Jack B. =
Anglin=20
Co., 842 S.W.2d at 269‑70. The FAA does not =
require a=20
substantial effect on interstate commerce; it only requires that =
commerce=20
be involved or affected. In re L & L Kempwood =
Assocs.,=20
L.P., 9 S.W.3d 125, 127 (Tex. 1999) (orig. proceeding) =
(contract for=20
renovation work on Houston apartments to be done by Texas business =
for=20
Georgia owners involved interstate commerce). Activities =
than can=20
serve as interstate commerce include transportation of materials =
across=20
state lines or manufacture of parts in a different state. =
In re=20
Big 8 Food Stores, Ltd., 166 S.W.3d 869, 879 (Tex. =
App.CEl Paso 2005, orig.=20
proceeding). Purchasing goods and services from outside =
Texas that=20
are shipped to Texas establishes that a party is engaged in =
interstate=20
commerce. In re Border Steel, Inc., 229 S.W.3d 825, =
830-31=20
(Tex. App.CEl Paso 2007, orig.=20
proceeding).
Relator furnished an =
affidavit=20
from Linda Chou, the owner of Studio 8 Floors & Walls, to the =
court=20
below. She averred, in part, that AStudio 8 is a small =
business=20
based in Texas. Studio 8 use[d] tile and materials from =
China,=20
Italy, and other locations outside of Texas in performing its =
contract=20
with Plaintiff. Studio 8 also used other materials such as =
grout and=20
tools purchased at interstate companies such as Home Depot and =
Lowes in=20
performing its contract with Plaintiff.@ Thus, the =
contract=20
involves commerce.
We conclude that =
relator=20
established the existence of a valid agreement to arbitrate under =
the FAA=20
and the claims in dispute are within the scope of the =
agreement. =20
Therefore, the trial court abused its discretion in denying=20
relator=3Ds motion to compel=20
arbitration.
Accordingly, we =
conditionally=20
grant the petition for a writ of mandamus and direct the trial =
court to=20
vacate its August 8, 2007, order denying relator=3Ds motion to compel =
arbitration=20
and enter an order compelling arbitration. The writ will =
issue only=20
if the trial court fails to act in accordance with this=20
opinion.
PER CURIAM
Petition Conditionally Granted and =
Memorandum=20
Opinion filed November 8, 2007.
Panel consists of Chief Justice Hedges =
and=20
Justices Anderson and=20
Seymore. |