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Petition for Writ of Mandamus = Conditionally=20 Granted, Appeal Dismissed, and Opinion filed March 27,=20 2008.

 

           &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;            = ;            =             &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;            = ;            =           =20

In The

Fourteenth=20 Court of Appeals

________________________

 

NO. 14-07-00303-CV

____________

 

ASPEN=20 TECHNOLOGY, INC., = Appellant

 

V.

 

ABE=20 SHASHA, = Appellee

 

On Appeal from the = 165th District Court

Harris County, = Texas

Trial Court Cause = No.=20 06-29662

 

NO.=20 14-07-00469-CV

____________

 

IN RE ASPEN = TECHNOLOGY, INC.,=20 Relator

 

 

ORIGINAL=20 PROCEEDING

WRIT OF=20 MANDAMUS

 

 

O P I N I=20 O N

An=20 employer and its employee entered into two arbitration agreements=20 C = one in=20 which they did not specify the arbitration rules, arbitration = site, or=20 number of arbitrators and a subsequent agreement in which they = specified a=20 three-arbitrator panel in Boston, Massachusetts, in accordance = with the=20 commercial arbitration rules of the American Arbitration = Association. The=20 trial court compelled arbitration in Houston, Texas, before a = single=20 arbitrator under the first agreement but refused to compel = arbitration=20 under the second agreement, impliedly ruling that the second = agreement is=20 illusory and substantively unconscionable.  We conclude = mandamus=20 relief is warranted.  For the reasons explained below, we = direct the=20 trial court to vacate its orders compelling arbitration under the = first=20 agreement and to issue an order compelling arbitration under the = second=20 agreement.  Given this ruling, the employer=3Ds=20 interlocutory appeal is rendered moot.

I. =20 Factual and Procedural Background

Appellee/real=20 party in interest Abe Shasha began his employment in December = 2001, with=20 the predecessor of appellant/relator Aspen Technology, Inc.  = At that=20 time, Shasha signed an agreement regarding his employment, in = which he and=20 Aspen=3Ds=20 predecessor agreed  to arbitrate any and all disputes or=20 controversies that might arise between Shasha and = Aspen=3Ds=20 predecessor, including without limitation employment disputes = (hereinafter=20 A2001=20 Agreement@). =20 On October 28, 2005, Shasha signed an agreement regarding his = incentive=20 compensation for Aspen fiscal year 2006 (hereinafter A2006=20 Agreement@). =20 In the 2006 Agreement, Shasha agreed that any legal action against = Aspen=20 would be settled exclusively by arbitration before a three-member = panel in=20 Boston, Massachusetts in accordance with the commercial = arbitration rules=20 of the American Arbitration Association (hereinafter AAAA@).=20

Early in=20 2006, Shasha notified Aspen that he had a dispute regarding his=20 commissions.  In May 2006, Shasha resigned from his position = with=20 Aspen and soon thereafter filed suit against Aspen in the trial = court=20 below asserting contract and tort claims.  Aspen filed a motion = to compel=20 arbitration, relying on both the 2001 Agreement and the 2006=20 Agreement.  In response, Shasha admitted that he executed = both the=20 2001 Agreement and the 2006 Agreement.  Shasha argued that = the=20 arbitration provision in the 2006 Agreement replaced the = arbitration=20 provision in the 2001 Agreement.  Shasha did not dispute that = his=20 claims fall within the scope of the arbitration clause in the 2006 = Agreement; rather, Shasha asserted that this arbitration clause is = unenforceable because (1) the clause is illusory given that Aspen=20 allegedly retains a unilateral, unrestricted right to terminate = this=20 arbitration agreement; and (2) the clause imposes such exorbitant = costs on=20 Shasha that it is substantively unconscionable. 

The trial court = granted=20 Aspen=3Ds motion to compel, = ordered all=20 claims to arbitration, and stayed the case pending the conclusion = of the=20 arbitration.  However, the trial court=3Ds first order did not = specify=20 the site for the arbitration or the agreement under which the = trial court=20 ordered the parties to arbitrate the claims.  Confusion arose = as to=20 whether the trial court had ordered arbitration under the 2006=20 Agreement.  Aspen asserted that the trial court had ordered = the=20 parties to arbitrate the claims in Boston, Massachusetts, under = the 2006=20 Agreement.  Shasha filed a motion for reconsideration and=20 clarification.  In this motion, Shasha stated that the trial=20 court=3Ds order was ambiguous = as to=20 whether the trial court had compelled the parties to arbitrate the = claims=20 under the 2001 Agreement or under the 2006 Agreement.  Shasha = asserted that he had no issue with the court to the extent it = intended to=20 compel arbitration under the  2001 Agreement.  However, = to the=20 extent the trial court had ordered arbitration under the 2006 = Agreement,=20 Shasha moved the court to reconsider its rejection of the two = grounds upon=20 which Shasha had asserted that this arbitration agreement is=20 unenforceable.  Shasha requested the trial court to order the = parties=20 to arbitration under the 2001 Agreement in Houston, Texas, with a = single=20 arbitrator.

Aspen filed a = response in=20 opposition in which it argued that no clarification was necessary = because=20 the trial court already had ordered the parties to arbitrate in = Boston,=20 Massachusetts, under the 2006 Agreement.  Aspen again = presented=20 argument in support of its position that there is no merit in=20 Shasha=3Ds two objections to = the=20 enforceability of the arbitration clause in the 2006 = Agreement. =20 Aspen asserted that the Federal Arbitration Act (AFederal = Act@) and the Texas = Arbitration Act=20 (ATexas Act@) both mandate that=20 Shasha=3Ds claims be = arbitrated in=20 Boston, Massachusetts before a panel of three arbitrators pursuant = to the=20 commercial=20 arbitration rules of the AAA (ACommercial = Rules@) and that the = proceedings in=20 the trial court be stayed pending completion of arbitration.  = Aspen=20 submitted to the trial court a proposed order denying = Shasha=3Ds motion.  In = this=20 proposed order, the trial court would compel arbitration in = Boston,=20 Massachusetts, before a panel of three arbitrators pursuant to the = Commercial Rules and stay the proceedings in the trial court until = the=20 conclusion of the arbitration.  Instead of signing this = proposed=20 order, the trial court signed an order in which it granted=20 Shasha=3Ds motion and = compelled=20 arbitration in Houston, Texas, with a single arbitrator under the = 2001=20 Agreement.  Aspen has appealed this order under section = 171.098(a)(1)=20 of the Texas Civil Practice and Remedies Code.  = See=20 Tex. Civ. Prac. & Rem. Code Ann. ' = 171.098(a)(1) (Vernon 2005).  Aspen also = filed a=20 petition for writ of mandamus.  This court has consolidated = these two=20 proceedings.

           &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;   =20 II.  Standard of Review

The=20 Federal Act applies to an arbitration agreement in any contract = involving=20 interstate commerce, to the full extent of the Commerce Clause of = the=20 United States Constitution.  See 9 U. S. C. = ' = 2 (1999);=20 Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, = 277B81, 115 S.=20 Ct. 834, 839B41, 130 L.=20 Ed. 2d 753 (1995); In re L&L Kempwood Assocs., 9 S.W.3d = 125,=20 127 (Tex. 2006).  Shasha does not dispute that the Federal = Act=20 applies.  The 2001 Agreement and the 2006 Agreement both = involve=20 interstate commerce, and therefore, the Federal Act applies. = Mandamus relief is = available=20 when the trial court clearly abuses its discretion by erroneously = denying=20 a party its contracted‑for arbitration rights under the = Federal Act. =20 See In re D. Wilson Const. Co., 196 S.W.3d 774, = 780B81 (Tex. 2006) (orig. = proceeding); In re Igloo Prods. Corp., 238 S.W.3d 574, 577 = (Tex.=20 App.CHouston [14th Dist.] = 2007,=20 orig. proceeding [mand. denied]).  Therefore, = Aspen=3Ds right to mandamus = relief=20 hinges on whether the trial court erred by refusing to compel = arbitration=20 under the 2006 Agreement.[1] =20 On=20 mandamus review of factual issues, a trial court will be held to = have=20 abused its discretion only if the party requesting mandamus relief = establishes that the trial court reasonably could have reached = only one=20 decision, and not the decision the trial court made.  = Walker v.=20 Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. = proceeding). =20 Mandamus = review of=20 issues of law is less deferential.  A trial court abuses its=20 discretion if it clearly fails to analyze the law correctly or = apply the=20 law to the facts.  In re Cerberus Capital Mgmt., L.P., = 164=20 S.W.3d 379, 382 (Tex. 2005).

In=20 construing the 2006 Agreement, our primary concern is to ascertain = and=20 give effect to the intentions of the parties as expressed in the=20 contract.  Kelley‑Coppedge, Inc. v. Highlands Ins. = Co., 980=20 S.W.2d 462, 464 (Tex. 1998).  To ascertain the = parties=3D = true=20 intentions, we examine the entire agreement in an effort to = harmonize and=20 give effect to all provisions of the contract so that none will be = rendered meaningless.  MCI Telecomms. Corp. v. Tex. Utils. = Elec.=20 Co., 995 S.W.2d 647, 652 (Tex. 1999).  Whether a contract = is=20 ambiguous is a question of law for the court.  Heritage = Res., Inc.=20 v. NationsBank, 939 S.W.2d 118, 121 (Tex.  1996).  A = contract is ambiguous when its meaning is uncertain and doubtful = or is=20 reasonably susceptible to more than one interpretation. =20 Id.  However, when a written contract is worded such = that it=20 can be given a certain or definite legal meaning or = interpretation, it is=20 unambiguous, and the court construes it as a matter of law. =20 Am.  Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, = 157=20 (Tex. 2003).

           &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;   =20 III.  Issues and Analysis

A.     =20 Does this court lack mandamus jurisdiction because the trial court = did not=20 deny a motion to compel arbitration?

Shasha=20 first argues that this court lacks jurisdiction to consider=20 Aspen=3Ds mandamus=20 petition because the trial court allegedly did not deny = Aspen=3Ds=20 application to compel arbitration.  According to Shasha, = Aspen moved=20 to compel arbitration under either the 2001 Agreement or the 2006=20 Agreement, and the trial court granted this request by compelling=20 arbitration under the 2001 Agreement.  Though Aspen based its = motion=20 to compel on both agreements, in response to Shasha=3Ds motion=20 for=20 reconsideration and clarification, Aspen=20 relied = on the 2006=20 Agreement and requested the trial court to order arbitration of=20 Shasha=3Ds claims in Boston, = before a=20 panel of three arbitrators pursuant to the Commercial Rules.  = The=20 trial court refused to do so, and instead, it ordered the parties = to=20 arbitrate the claims in Houston, with a single arbitrator under = the 2001=20 Agreement. Mandamus relief is available if a trial court abuses = its=20 discretion by erroneously denying a party its contracted‑for = arbitration=20 rights under the Federal Act.  See In re D. Wilson Const. = Co.,=20 196 S.W.3d 774, 780B81.  Impliedly = finding=20 that the arbitration clause in the 2006 Agreement is illusory and=20 substantively unconscionable, the trial court denied Aspen=20 its = contracted‑for=20 arbitration rights under the 2006 Agreement, which is governed by = the=20 Federal Act.  Therefore, this court has mandamus jurisdiction = to=20 consider whether the trial court clearly abused its discretion in = so=20 ruling.  See In re D. Wilson Const. Co., 196 S.W.3d = 774,=20 780B81.

B.     =20 Did the trial court err by concluding that the arbitration clause = in the=20 2006 Agreement is illusory?

Shasha=20 asserted in the trial court that the arbitration clause in the = 2006=20 Agreement is illusory because Aspen allegedly retains a = unilateral,=20 unrestricted right to terminate this arbitration agreement.  = If one=20 party to an arbitration agreement retains such a right, then the=20 arbitration agreement is illusory and unenforceable.  See = In re=20 Palm Harbor Homes, Inc., 195 S.W.3d 672, 677 (Tex. = 2006).  Shasha=20 asserts that Aspen retains a unilateral, unrestricted right to = terminate=20 the arbitration provision in the 2006 Agreement based on the = following=20 language in that agreement:

The=20 incentive compensation plan administrator (Vice President of = Worldwide=20 Sales Operations) is responsible for the interpretation of the = plan. =20 If the meaning or interpretation of the plan wording requires=20 clarification after consideration of all the facts, the Senior = Vice=20 President, Worldwide Sales and Business Development (SVP Sales) or = his/her=20 designee(s), if any[,] will issue a written ruling, which will be=20 final.  In addition, the SVP Sales will be responsible for = the=20 periodic review of the plan and may make revisions from  = time to=20 time.

(emphasis=20 added).  The title of the 2006 Agreement is AAspen=20 Technology, Inc. FY 2006 Incentive Compensation Plan Global = Account=20 Manager (GAM).@  In=20 the 2006 Agreement, there is no definition of the term = Aplan.@ =20 Shasha asserts that, under the above language, the SVP Sales may = make=20 revisions to the 2006 Agreement from time to time.  Presuming = that=20 the above language refers to the 2006 Agreement as Athe=20 plan,@ = and=20 presuming that the SVP Sales may review the 2006 Agreement and = make=20 revisions from time to time, this is not equivalent to stating = that the=20 SVP Sales has a unilateral, unrestricted right to terminate the=20 arbitration provision in the 2006 Agreement.  Under the 2006=20 Agreement, A[a]ny=20 additional terms or conditions, or verbal or written agreements = between=20 [Shasha] and [Aspen] will not apply unless explicitly agreed to = and=20 approved in a signed writing by both the SVP Sales and=20 [Shasha].@ =20

We=20 conclude that, under the unambiguous language of the 2006 = Agreement, Aspen=20 does not retain a unilateral, unrestricted right to modify or = terminate=20 the arbitration provision in that agreement; therefore, that = arbitration=20 provision, as a matter of law, is not illusory. =20 See = In re=20 Dillard Dept. Stores, Inc., 186 S.W.3d 514, 516 (Tex. 2006) = (holding=20 that arbitration agreement did not give employer unilateral, = unrestricted=20 right to modify the arbitration agreement).  The cases on = which=20 Shasha relies are not on point.  See J.M. Davidson, Inc. = v.=20 Webster, 128 S.W.3d 223, 228B30 (Tex.=20 2003) (concluding that it was unclear whether employer retained = unilateral=20 right to terminate arbitration agreement without notice in case in = which=20 agreement stated that the employer Areserves=20 the right to unilaterally abolish or modify any personnel policy = without=20 prior notice@); In=20 re C & H News Co., 133 S.W.3d 642, 646 (Tex. = App.CCorpus=20 Christi 2003, orig. proceeding) (concluding agreement was illusory = because=20 it contained provision giving employer the ability to modify or = delete=20 provisions as the employer deems appropriate, with or without = prior=20 notification to employees); Tenet Healthcare Ltd. v. = Cooper, 960=20 S.W.2d 386, 386B88 (Tex.=20 App.CHouston=20 [14th Dist.] 1998, pet. dism=3Dd w.o.j.)=20 (holding arbitration agreement contained in employee handbook was = not=20 supported by consideration, in case in which handbook stated that = (1) it=20 was not intended to constitute a legal contract with any employee = because=20 that could only occur with a written agreement executed by a = facility=20 executive director and (2) the employer reserved the right to = amend or=20 rescind any provision of the handbook as it deemed appropriate in = its sole=20 and absolute discretion).  Therefore, the trial court clearly = abused=20 its discretion to the extent it concluded that the arbitration = clause in=20 the 2006 Agreement is illusory. 

C.     =20 Did the trial court err by concluding that the arbitration clause = in the=20 2006 Agreement is substantively=20 unconscionable?

Shasha=20 asserted in the trial court that the arbitration clause in the = 2006=20 Agreement =20 imposes such exorbitant costs on him that it is substantively=20 unconscionable.  Under=20 certain circumstances, arbitration costs could be so high that = they=20 preclude a litigant from effectively vindicating his rights = through=20 arbitration.  See Green Tree Fin. Corp. v. Randolph, = 531 U.S.=20 79, 90B92, 121 S.=20 Ct. 513, 522B23, 148=20 L.Ed.2d 373 (2000).  A party seeking to invalidate an = arbitration=20 agreement on the ground that arbitration would be prohibitively = expensive=20 bears the burden of providing specific evidence showing a = likelihood that=20 he would incur excessive arbitration costs.  See Green = Tree Fin.=20 Corp., 531 U.S. at 90B92, 121 S.=20 Ct. at 522B23; In=20 re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex. 2007); In re=20 FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001); TMI, = Inc. v.=20 Brooks, 225 S.W.3d 783, 796 (Tex. App.CHouston=20 [14th Dist.] 2007, pet. denied).  

The 2006=20 Agreement is silent as to arbitration costs.  In the trial = court=20 Shasha offered an affidavit from one of his lawyers.  In this = affidavit, Shasha=3Ds counsel=20 testifies, in pertinent part, to the following:

!      =20 Based on his personal knowledge of the Commercial Rules and the = AAA=20 employment arbitration rules (AEmployment = Rules@), claims = arbitrated under=20 the Commercial Rules are significantly more costly to the=20 employee/claimant than claims arbitrated under the Employment = Rules. =20 This is because under the Employment Rules, the employee/claimant = is only=20 responsible for a filing fee of $50-150; whereas under the = Commercial=20 Rules, the employee/claimant is responsible for the filing fee, = the case=20 service fee, and one-half of all the arbitrator fees unless the=20 arbitration agreement states otherwise.

 

!      =20 The AAA=3Ds filing fee for = this case=20 would be $4,250, and the AAA case service fee would be = $1,750.  The=20 AAA administration fee would be $325.  Although arbitrator = fees vary=20 for each arbitrator, a Amedian = estimate@ is $305.50 per = hour for each=20 arbitrator based on ten arbitrator resumes for the Boston area = from the=20 AAA website.  A conservative estimate of total arbitrator = fees based=20 on four days of work per arbitrator is $24,000 (32 hours x = $250/hour per=20 arbitrator). 

!      =20 Shasha=3Ds air fare and = hotel costs=20 for an arbitration in Boston would be at least $2,700.

 

Presuming=20 that arbitrations under the Commercial Rules are significantly = more costly=20 than arbitrations under the Employment Rules, this testimony alone = does=20 not provide specific evidence as to Shasha=3Ds likely=20 costs to arbitrate under the 2006 Agreement.  Though=20 Shasha=3Ds counsel=20 provides projected fees for filing with the AAA, AAA case service, = and AAA=20 administration, this projection is based on the premise that the = AAA would=20 administer the arbitration.[2] =20 However, the arbitration provision in the 2006 Agreement does not = require=20 that the AAA conduct or administer the arbitration; rather the = provision=20 states that arbitration shall be Ain=20 accordance with the [Commercial Rules].@ =20 Under this language, the AAA may administer the arbitration, but = the=20 parties are not required to have the arbitration administered by = the=20 AAA.  See TMI, Inc., 225 S.W.3d at 797.  =20 Although = the party=20 seeking to compel arbitration in TMI, Inc. presented = evidence that=20 arbitration under the same arbitration provision was available by = a=20 non-AAA arbitrator at a cost significantly lower that the costs of = a AAA=20 arbitration, such proof is not necessary for Shasha to be required = to make=20 a factual showing that the AAA would administer the=20 arbitration. = See=20 Green Tree Fin. Corp., 531 U.S. at 90 n.6, 121 S. Ct. at 522 = n.6=20 (concluding that party asserting substantive unconscionability = could not=20 carry her burden of proof based on AAA fees unless she, made a = factual=20 showing, among other things, that the AAA would administer the=20 arbitration). 

As to=20 arbitrator fees, again, Shasha=3Ds=20 projected fees appear to be based on fees charged by AAA=20 arbitrators.  In addition, Shasha=3Ds counsel=20 testifies that, under the Commercial Rules, absent agreement by = the=20 parties, Shasha must pay half of the arbitrator fees.  = However, under=20 the Commercial Rules attached to counsel=3Ds=20 affidavit, the arbitration panel in its final award shall = apportion the=20 arbitration fees, expenses, and compensation among the parties in = such=20 amounts as the panel determines is appropriate. 

We=20 conclude that the evidence is legally insufficient to support the = trial=20 court=3Ds implied=20 finding that Shasha satisfied his burden of providing specific = evidence=20 showing a likelihood that he would be denied access to arbitration = based=20 on excessive arbitration costs.  See Green Tree Fin. = Corp.,=20 531 U.S. at 90B92, 121 S.=20 Ct. at 522B23; In=20 re U.S. Home Corp., 236 S.W.3d at 764; In re FirstMerit = Bank,=20 N.A., 52 S.W.3d at 756B57;=20 TMI, Inc., 225 S.W.3d at 796.  On the=20 record before it, the only finding the trial court could have made = was=20 that Shasha did not satisfy this burden.  By impliedly ruling = to the=20 contrary, the trial court clearly abused its=20 discretion.

In=20 addition, even presuming that the AAA would administer the = arbitration and=20 that the arbitration costs and fees would be allocated equally by = the=20 arbitration panel, Shasha=3Ds counsel=20 projected aggregate costs and fees of $30,325, which would make=20 Shasha=3Ds portion=20 $15,162.50.  Presuming that the extra expense of traveling to = Boston=20 for the arbitration is $2,700 (the figure stated in the affidavit = of=20 Shasha=3Ds counsel)=20 the total financial burden on Shasha would be $17,862.50.  = However,=20 Shasha is asserting a claim of between $300,000 and $500,000, and=20 Shasha=3Ds base=20 salary, without commissions, when he entered into the 2006 = Agreement was=20 $120,000.  Though Shasha provided his own affidavit, in which = he=20 states that the costs of pursuing his claim through arbitration in = Boston=20 under the 2006 Agreement would be extraordinary, oppressive, = unaffordable,=20 and would deprive him of the opportunity to litigate his claim, = these=20 conclusory statements are legally insufficient.  See, = e.g., Green=20 Tree Fin. Corp., 531 U.S. at 90 n.6, 121 S. Ct. at 522 n.6 = (concluding=20 that party=3Ds=20 unsupported statement that she did not have the resources to pay = the high=20 costs of arbitration was insufficient).  Shasha does state = that he is=20 currently paying for the university studies of his three children = and that=20 since he stopped working at Aspen he has been unable to find = Aequivalent=20 fixed income work.@ =20 However, we determine substantive unconscionability based on the=20 circumstances existing when the parties entered into the contract = in=20 October 2005, and Shasha provided no evidence as to his finances = or=20 ability to pay $17,862.50 at this time.[3] =20 See In re FirstMerit Bank, N.A., 52 S.W.3d at 757. =

Under the=20 applicable standard of review, we conclude that the trial court = clearly=20 abused its discretion by impliedly ruling that the arbitration = clause in=20 the 2006 Agreement is substantively unconscionable.[4]=20

           &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;=20 IV.  Conclusion

The=20 Federal Act governs the arbitration clause in the 2006 = Agreement. =20 Therefore, this court has mandamus jurisdiction to consider = whether the=20 trial court erred in denying Aspen its = contracted‑for arbitration=20 rights under the 2006 Agreement.  The trial=20 court clearly abused its discretion (1) by impliedly finding that = the=20 arbitration clause in the 2006 Agreement is illusory; (2) by = impliedly=20 finding that the clause is substantively unconscionable; and (3) = by=20 refusing to order the parties to arbitrate the claims under the = 2006=20 Agreement.  Accordingly, we conditionally grant a writ of = mandamus=20 directing the trial court to vacate its orders compelling = arbitration=20 under the 2001 Agreement and to issue an order (1) compelling = arbitration=20 under the 2006 Agreement before a three-arbitrator panel in = Boston,=20 Massachusetts, in accordance with the Commercial Rules and = (2) staying the = proceedings in=20 the trial court pending completion of arbitration.  We=20 are confident the respected trial judge will comply with this = opinion.=20 Only in the unlikely event she fails to do so will the writ = issue. =20 Because we have granted this mandamus relief, we dismiss = Aspen=3Ds=20 interlocutory appeal as moot.

 

 

 

/s/     =20 Kem Thompson Frost

Justice

 

 

 

Judgment=20 rendered and Opinion filed March 27, 2008.

Panel=20 consists of Chief Justice Hedges and Justices Anderson and=20 Frost.


[1]   In 1992, addressing whether = a party=20 is entitled to mandamus relief for wrongful denial of its = arbitration=20 rights under an agreement subject to the Federal Act, the Texas = Supreme=20 Court concluded that the Texas Act does not provide such a party = the=20 ability to assert an interlocutory appeal.  See Jack B. = Anglin,=20 Inc. v. Tipps, 842 S.W.2d 266, 272B73 (Tex. 1992).  In 2006, the Texas = Supreme=20 Court decided that such a party can file an interlocutory appeal = of the=20 trial court=3Ds denial of a motion to compel = arbitration under=20 an agreement governed by the Federal Act. See In re D. Wilson = Const.=20 Co., 196 S.W.3d 774, 778B80 (Tex. 2006).  It might appear = that Aspen=20 is not entitled to mandamus relief in this case because the = Federal Act=20 governs the Agreement and, under In re D. Wilson Const. = Co., Aspen=20 has an adequate remedy at law by interlocutory appeal.  = See=20 id.  However, the Texas Supreme Court reaffirmed in =  In=20 re D. Wilson Const. Co. that mandamus relief remains available = when a=20 party is erroneously denied its contracted‑for arbitration = rights under=20 the Federal Act.  See In re D. Wilson Const. Co., 196 = S.W.3d=20 at 780B81.  Therefore, we conclude that = mandamus=20 relief is still potentially available to Aspen. 

 

[2]  Shasha=3Ds counsel attaches a copy of the = Commercial Rules=20 and the fee schedule for arbitrations conducted by the AAA, but = the AAA=20 fee schedule is not part of the Commercial Rules. =

[3]  In any event, Shasha did not = provide=20 specific evidence in his affidavit that would prove his present = ability to=20 pay this amount.

[4]  Shasha relies on = In re=20 Luna, 175 S.W.3d 315, 319 (Tex. App.CHouston [1st Dist.] = 2004,=20 orig. proceeding [mand. pending]).  We are not bound by In = re=20 Luna, and, in any event, in that case, there was evidence = establishing=20 that arbitration would force the former employee to pay fees that = amounted=20 to one-half of his annual compensation.  See In re = Luna, 175=20 S.W.3d 315, 321 (Tex. App.CHouston [1st Dist.] = 2004,=20 orig. proceeding [mand. pending]).  Therefore,  In re = Luna is not on point. 

 

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