Subject: IN THE SUPREME COURT OF TEXAS
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Date: Sat, 29 Sep 2007 11:11:13 -0500

IN THE SUPREME COURT OF TEXAS

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No. 04-0252

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Alton J. Meyer, Meyer
Acquisition Corp., and Ford Motor Company, Petitioners,

v.

WMCO-GP, LLC and Bullock
Motor Company, Respondents

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On Petition for Review from the

Court of Appeals for the Ninth District of
Texas

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Argued March 23,
2005

Justice O’Neill,
dissenting.

Clearly, a
nonsignatory can compel a party who has signed an arbitration agreement to
arbitrate a dispute under appropriate circumstances. E.g., Grigson v.
Creative Artists Agency, 210 F.3d 524, 528 (5th Cir. 2000); MS Dealer
Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999). A party who has
signed an agreement containing an arbitration clause may be compelled to
arbitrate disputes with a nonsignatory when the signatory must rely on the terms
of the agreement to prosecute claims against the nonsignatory. Grigson,
210 F.3d at 527 (citing MS Dealers Serv. Corp., 177 F.3d at 947). A
nonsignatory may also be entitled to compel arbitration when claims asserted by
a signatory allege “substantially interdependent and concerted misconduct by
both the nonsignatory and one or more of the signatories to the contract.”
Id. (quoting MS Dealers Serv. Corp., 177 F.3d at 947). But even
the exceptionally strong policy favoring arbitration cannot justify requiring
litigants to forego a judicial remedy when they have not agreed to do so.
E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 293-94 (2002).

I agree with
the court of appeals that neither prong of the Grigson test is satisfied
in this case. While WMCO asserts that Ford and Meyer tortiously interfered with
the purchase and sales agreement between WMCO and Bullock, its claims depend on
the existence of the agreement, not its terms. In similar circumstances, the
Fifth Circuit has declined to compel arbitration, noting that the mere fact that
a dispute touches on an agreement containing an arbitration clause is an
insufficient basis on which to compel arbitration. Hill v. G.E. Power Sys.,
Inc., 282 F.3d 343, 348-49 (5th Cir. 2002). Neither is the second prong
fulfilled. WMCO does not allege any substantially interrelated misconduct
between Bullock and Ford or Meyer. To the contrary, WMCO asserts that Bullock
was compelled by Ford and Meyer to breach the purchase and sales agreement and
would have fully performed absent their interference.

Finally, I
also agree with the court of appeals that the terms of the arbitration clause in
the purchase and sales agreement between Bullock and WMCO express an intent to
require arbitration of a relatively narrow scope of disputes – disputes “between
the parties to [the] Agreement involving the construction or application of any
of the terms, covenants, or conditions of [the]
Agreement . . . .” 126 S.W.3d 313, 319. This language is
considerably narrower than the standard, broad arbitration clause requiring
arbitration of “‘[a]ny controversy or claim arising out of or relating to this
contract, or the breach thereof . . . .’” Beckham v. William Bayley Co.,
655 F. Supp. 288, 291 (N.D. Tex. 1987) (quoting Hoellering, Arbitrability of
Disputes, 41 Bus. Law. 125
(Nov. 1985) (citing K. Seide, A Dictionary of Arbitration and Its Terms
21 (1970)). The strong policy favoring arbitration “cannot serve to stretch a
contractual clause beyond the scope intended by the parties.” Id. at
291-92.

Under these circumstances, the trial court did not abuse its discretion in
refusing to compel arbitration. I respectfully dissent.

__________________________________________

Harriet
O’Neill

Justice

OPINION DELIVERED: December 22,
2006.