law-arbitration-gateway-issues

law-arbitration-gateway-issue | litigating existence of an arbitration agreement | enforceability of agreement to arbitrate |
formation of arbitration contract | capacity to contract avoidance defenses law-arbitrator-exceeded-his-powers | grounds for
vacation arbitration award entered under the FAA | arbitration-mandamus | Arbitration law cases from the Houston courts of
appeals | confirmation of arbitration awards | interstate-commerce-as-basis-for-FAA applicability of Federal Arbitration Act to
arbitration of dispute between parties 9 U.S.C.S. §§ 1-307 | TAA Tex. Civ. Prac. & Rem. Code Ann. § 171.001-.098 TAA vs. FAA |
preemption of TAA by FAA | Appeals from suits to confirm arbitration awards in the Houston Courts of Appeals | Houston
Arbitration Cases | valid and enforceable arbitration agreement | enforcing arb clause against nonsignatory | modification of
arbitration award | challenging arbitration | FAA Federal Arbitration Act | FAA-applicability 9 U.S.C.S. §§ 1-307 | TAA Tex. Civ. Prac.
& Rem. Code Ann. § 171.001-.098 | confirmation of arbitration award under FAA | grounds for vacature under the FAA | TAA vs.
FAA | preemption of TAA by FAA | preemption of state TAA by Federal Arbitration Act | Appeals from suits to confirm arbitration
awards in the Houston Courts of Appeals | Houston Arbitration Cases |

"Under the FAA, absent unmistakable evidence that the parties intended the contrary, it is the courts rather
than arbitrators that must decide `gateway matters' such as . . . [w]hether an arbitration agreement is binding
on a nonparty. . . ." In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex.2005) (orig.proceeding).

In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex.2005) ("[A]bsent unmistakable evidence that the parties
intended the contrary, it is the courts rather than the arbitrators that must decide `gateway matters' such as
whether a valid arbitration agreement exists. Whether an arbitration agreement is binding on a nonparty is one
of those gateway matters."); In re Ford Motor Co., 220 S.W.3d 21, 23 (Tex.App.-San Antonio 2006, no pet.)
(same).

GATEWAY ISSUE FOR ARBITRATION: WAS A VALID AGREEMENT TO
ARBITRATE FORMED?

Under the FAA, "it is the courts rather than arbitrators that must decide gateway matters, such as whether a
valid arbitration agreement exists," unless there is unmistakable evidence that the parties intended the
contrary. In re Weekley Homes, 180 S.W.3d 127, 130 (Tex. 2005) (orig. proceeding).

"Generally under the FAA, state law governs whether a litigant agreed to arbitrate, and federal law governs the
scope of an arbitration clause." Id. Whether a nonparty may enforce an arbitration clause can involve aspects
of either or both. See id. at 130-31. As the Texas Supreme Court has already held in analyzing whether a
nonparty may be compelled to arbitrate, we will apply state law while endeavoring to keep it as consistent as
possible with federal law. See id. at 131 ("Pending an answer from the United States Supreme Court, we apply
state law while endeavoring to keep it as consistent as possible with federal law.").
In R e Bashaw & Co. (Tex.App.- Houston [1st Dist.] Jul. 23, 2009)(Keyes)(arbitration, direct benefits estoppel,
arbitration mandamus granted)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Keyes
Before Justices Keyes, Hanks and Bland
01-08-00803-CV        In re James E. Bashaw & Co.
Appeal from 133rd District Court of Harris County
Trial Court Judges: Lamar McCorkle | Jaclanel McFarland

WAS IS A GATEWAY ISSUE IN THE ARBITRATION CONTEXT?

"[A] gateway dispute about whether the parties are bound by a given arbitration clause raises a 'question of
arbitrability' for a court to decide." Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S. Ct. 588, 592
(2002); see also AT&T Techs., Inc. v. Communc'ns Workers of Am., 475 U.S. 643, 649, 106 S. Ct. 1415, 1418
(1986); TriMas Corp., 531 F.3d at 535; Will-Drill Res., Inc. v. Samson Res. Co., 352 F.3d 211, 219 (5th Cir.
2003) (holding that "where a party attacks the very existence of an agreement, as opposed to its
continued validity or enforcement, the courts must first resolve that dispute"). Under the FAA, state law governs
the question of whether a litigant has agreed to arbitrate. First Options of Chicago, Inc. v. Kaplan, 514 U.S.
938, 944-45, 115 S. Ct. 1920, 1924 (1995); In re Weekley Homes, L.P., 180 S.W.3d 127, 130-31 (Tex. 2005).
Rapid Settlements, Ltd v. Green (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Alcala) (transfer of structured settlement
rights, grounds for v acature of arbitration award entered under the Federal Arbitration Act (FAA), applicability of FAA, does the FAA
preempt the TAA?, nonexistence of arbitration agreement between the parties, when are nonsignatories bound to by arbitration
agreement? nonparties to the agreement, nonsignatories)(arbitrator exceeded his authority in issuing the award. See 9 U.S.C.S.
§ 10(a)(4).
AFFIRM TC JUDGMENT DENYING CONFIRMATION OF ARB AWARD: Opinion by Justice Alcala
Before Justices Jennings, Alcala and Higley
01-08-00109-CV Rapid Settlements, Ltd. v. Jerry M. Green
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Hon. Linda Storey
It is undisputed that Transamerica did not agree to arbitrate with Rapid and Green. We must therefore consider whether
Transamerica might be bound as a nonsignatory.

No Enforceable Agreement to Arbitrate Precludes Enforcement of Arbitration
Stewart & Stevenson, L.L.C. v. Galveston Party Boats, Inc. (Tex.App.- Houston [1st Dist.] Nov. 5,2009)(Keyes)
(consolidated interlocutory appeal and petition for writ of mandamus challenging the trial court’s order denying
a motion to compel arbitration)(court of appeals dismisses the interlocutory appeal for lack of jurisdiction and
denies the petition for writ of mandamus) (no valid underlying agreement to arbitrate dispute) (FAA vs. TAA)
DISMISS APPEAL 9/5: Opinion by Justice Keyes
Before Justices Keyes, Hanks and Bland
01-09-00030-CV Stewart & Stevenson, L.L.C., and MTU Detroit Diesel, Inc. v. Galveston Party Boats, Inc., and
Boat Service of Galveston
Appeal from 405th District Court of Galveston County
Trial Court Judge: Hon. Wayne J. Mallia

No Agreement to Arbitrate - No Enforceable Duty to Arbitrate
In Re GeoMet, Inc. (Tex.App.- Houston [14th Dist.] Oct. 22, 2009)(per curiam)
(arbitration mandamus denied, no agreement to arbitrate established)
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00685-CV In Re Gomet, Inc.
Appeal from 151st District Court of Harris County
Trial Court Judge: Mike Engelhart

Valid Arbitration Agreement a prerequisite for judicial enforcement
Travelers Indemnity Co. v. Texas Municipal League (Tex.App.- Houston [1st Dist.] July 17, 2008)(Keyes)
(arbitration disputes) (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

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