Texas Arbitration Case Law (Tex. App.- Houston 2006)

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2006 Arbitration Cases Decided by the Houston Courts of Appeals and Texas Supreme Court

In re MHI Partnership (Tex.App. - Houston [1st. Dist.] Dec. 1, 2006)(per curiam)
[motion to compel arbitration]
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Taft, Keyes and Hanks
01-06-00121-CV        In re MHI Partnership, Ltd.-
Appeal from 280th District Court of Harris County (Judge Tony Lindsay]

Justice Keyes writes separately on issue of arbitration order review by mandamus vs.
interlocutory appeal; urges legislative reform

In Re Bill Heard Chevrolet (Tex.App.- Houston [1st Dist.] Nov. 30, 2006)(Taft)(arbitration mandamus denied)
DENY PETITION FOR WRIT OF MANDAMUS: Justice Taft
Before Justices Taft, Keyes and Hanks
01-06-00324-CV In re Bill Heard Chevrolet, LTD
Appeal from 268th District Court of Fort Bend County
Concurring Opinion by Justice Keyes
I second the supreme court's request that the Legislature amend the TAA to permit interlocutory appeals of orders
issued pursuant to the FAA.

Fourteenth Court of Appeals Panel Compels Arbitration by Mandamus

In Re D R Horton (Tex.App.-Houston [14th Dist.] Nov. 7, 2006)(Guzman)(mandamus)
MOTION OR WRIT GRANTED: Justice Guzman
Before Chief Justice Hedges, Justices Brock Yates and Guzman
14-06-00284-CV In Re D.R. Horton Inc.
Appeal from 152nd District Court of Harris County

Recent Appellate Cases

American Sta n dard and the Trane Company, et al. v. Brownsville I.S.D., No. 05-0327 (Tex. 2006)(Willet)
The Court dismisses the petition for review as moot.
(“In this consolidated proceeding, we decide whether the court of appeals had jurisdiction over an interlocutory
appeal under the Texas Arbitration Act and whether the parties’ arbitration agreements are ambiguous. We hold
that the court of appeals had jurisdiction over the interlocutory appeal and that the agreements are not ambiguous.”)
In re Raymond James & Assoc., 196 S.W.3d 311 (Tex.App.- Houston [1st Dist.] 2006, orig. proc.)(plaintiff consented
to arbitration by incorporation of Client Agreement even if not signed)

Court Grants Mandamus to Enforce Arbitration

D R Horton v. Hatton (Tex.App.-Houston [14th Dist.] Nov. 7, 2006)(Guzman)(multiple appeals, mandamus)
[arbitration law, motion to compel arbitration, mandamus, interlocutory appeal]
DISMISSED AS MOOT: Justice Guzman
Before Chief Justice Hedges, Justices Brock Yates and Guzman
14-06-00262-CV D.R. Horton, Inc. v. Brenda Hatton
Appeal from 152nd District Court of Harris County
(“For the reasons stated in our November 2, 2006 opinion, we conclude that the trial court abused its discretion in
failing to order Hatton to arbitrate her claims against D.R. Horton pursuant to the arbitration agreement between the
parties. Accordingly, we conditionally grant D.R. Horton’s petition for writ of mandamus in Cause No. 14-06-00284-
CV and direct the trial court to vacate the order denying D.R. Horton’s motion to compel and to enter an order
compelling the parties to arbitration. The writ will issue only if the trial court fails to comply with this opinion. Having
granted full relief under our mandamus jurisdiction, we dismiss as moot D.R. Horton’s interlocutory appeal, Cause
No. 14-06-00262-CV. See In re D. Wilson Constr. Co., 196 S.W.3d 774, 780 (Tex. 2006) (orig. proceeding).”

Mandamus Granted and Appeal Dismissed for Want of Jurisdiction, Federal Arbitration Statute Applied

In Re Walter Homes (Tex.App.- Houston [14th Dist.] Nov. 9 2006)(Fowler)
[arbitration, motion to compel]
MOTION OR WRIT GRANTED: Justice Fowler
Before Justices Fowler, Edelman and Frost
14-06-00635-CV        In Re: Jim Walter Homes, Inc.
Appeal from 149th District Court of Brazoria County
In this original proceeding, relator, Jim Walter Homes, Inc., seeks a writ of mandamus ordering respondent, the
Honorable Robert May, presiding judge of the 149th Judicial District Court of Brazoria County, Texas, to vacate the
portion of his June 16, 2006 order that denied arbitration. Real parties Sarah Cryer, individually and on behalf of
Mildred Wooten, also seek a writ of mandamus. Plaintiffs, however, request that the court be ordered to vacate the
portion of the June 16 order that compelled arbitration. We have reviewed the arbitration clause and hold that
arbitration of all the claims plaintiffs have asserted against Jim Walter Homes is required, so we conditionally grant
Jim Walter Homes’s petition. Because we are without jurisdiction to review an order compelling arbitration under the
Federal Arbitration Act, we dismiss plaintiffs’ petition for lack of jurisdiction.

Justices Disagree on Whether Interlocutory Appeals Statute Confers Jurisdiction Over Trial Court's
Order

Bison Building Materials v. Aldridge (Tex.App.- Houston [1st Dist.] Sep. 14, 2006)(Bland)
[arbitration, interlocutory appeal, ILA, employment injury, workplace safety, post-injury waiver]
DISMISS APPEAL: Opinion by Justice Bland
Before Justices Keyes, Alcala and Bland
01-05-00330-CV Bison Building Materials, Ltd. v. Lloyd K. Aldridge
Appeal from 334th District Court of Harris County (Judge Sharon McCally)
(“Bison Building Materials, Ltd. and Lloyd K. Aldridge appeal an interlocutory trial court order confirming in part and
vacating in part an arbitration decision that dismissed Aldridge’s claims against Bison. We conclude that we lack
statutory authority to consider this interlocutory appeal and therefore dismiss it for want of jurisdiction. ... Strictly
construing section 171.098(a), as we must, we hold that the Order at issue here is not an appealable interlocutory
order. Walker Sand, 95 S.W.3d at 516. “It is fundamental error for an appellate court to assume jurisdiction over
an interlocutory order when not expressly authorized to do so by statute.” Gathe v. Cigna Healthplan of Tex., Inc.,
879 S.W.2d 360, 363 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (citing New York Underwriters Ins. Co. v.
Sanchez, 799 S.W.2d 677, 679 (Tex. 1990)). We do not imply a lack of jurisdiction from the TAA provision allowing
interlocutory appeals of certain arbitration orders. Rather, absent a final judgment, or statutory authorization, we do
not have state court appellate jurisdiction in the first instance. We therefore dismiss the appeal for want of
jurisdiction.”)
Opinion Dissenting to this Court's Judgment by Justice Keyes
(“This is a case of first impression for this Court with important jurisdictional implications for Texas arbitration law.
Because I believe the majority has incorrectly decided this appeal, I respectfully dissent.”)

No Right to Arbitration Here

Syleasing v. Tejas Avco (Tex.App.- Houston [14th Dist.] Aug. 10, 2006)(Hudson)
[arbitration in the absence of agreement, equitable estoppel exception, motion to compel arbitration denied,
contract, quantum meruit]
AFFIRMED: Opinion by Justice Seymore
Before Justices Hudson, Frost and Seymore
14-05-00212-CV Skyleasing, LLC v. Tejas Avco Inc., D/B/A Houston Southwest Airport
Appeal from 240th District Court of Fort Bend County
(“A party’s right to litigate a dispute that the party has not agreed to arbitrate is at least as worthy of protection as a
bargained for right to arbitration.” Yazdani Beioky v. Bhandara, No. 14 00 01509 CV, 2001 WL 1429414, at *3, (Tex.
App.-Hous. [14 Dist.] Nov. 15, 2001, no pet.) (not designated for publication) (citing Freis, 877 S.W.2d at 284); see
Jenkens & Gilchrist, 87 S.W.3d at 201. Because the “limited” circumstances warranting application of the equitable
estoppel doctrine are not clearly satisfied here, we hold the trial court did not abuse its discretion by finding the
Airport should not lose its right to litigate its dispute with Skyleasing - a complete stranger to the lease. Accordingly,
we overrule Skyleasing’s sole issue and affirm the trial court’s order denying Skyleasing’s motion to compel
arbitration.”)

Mandamus Relief Denied Based on Lack of Jurisdiction; Issue Not Deemed Ripe for Adjudication

In Re Rapid Settlements (Tex.App.– Houston [14th Dist.] July 21, 2006)(per curiam)
[arbitration related petition for mandamus]
DISMISSED: Per Curiam - Before Justices Anderson, Edelman and Frost)
14-06-00572-CV In Re Rapid Settlements, LTD.
Appeal from 113th District Court of Harris County
(“The issues presented in the petition are not ripe for our determination. The jurisdictional requirement of ripeness
applies to mandamus cases. See Perry v. Del Rio, 66 S.W.3d 239, 248-252 (Tex. 2001). An opinion issued in a
case that is not ripe is an advisory opinion and courts of this State have no jurisdiction to render advisory opinions.
Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). The stay of the trial court proceedings
put into effect by our order dated June 30, 2006, is hereby lifted. The petition for writ of mandamus is dismissed for
want of jurisdiction.”)

Supreme Court Rules That Employer's Arbitration Policy Is Enforceable

I n R e Dillard Department Stores, Inc. No. 04-1132 (Tex. March 2, 2006)(per curiam)
From El Paso County; 8th district (08 -04 -00262 -CV, ___ S.W.3d ___, 11-24-04). Pursuant to Texas Rule of
Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of
mandamus. Per Curiam Opinion

In this original proceeding, relator Dillard Department Stores, Inc. seeks to compel arbitration of a retaliatory
discharge claim filed by its former employee. The trial court denied Dillard’s motion to compel, and the court of
appeals rejected Dillard’s petition for writ of mandamus. 153 S.W.3d 145. Because the trial court clearly abused its
discretion in denying the motion to compel arbitration, we conditionally grant Dillard’s petition for writ of mandamus.

Delia Garcia worked as a sales associate at Dillard’s Sunland Park store in El Paso. In August 2000, Dillard adopted
an arbitration policy covering most employment disputes, including retaliatory discharge. In 2002, Garcia was fired
six months after requesting workers’ compensation benefits for work-related injuries. Garcia filed the underlying suit
for retaliatory discharge, and Dillard moved to compel arbitration. In response, Garcia alleged that she never
agreed to the arbitration policy, and even if she had, the agreement would be unenforceable because Dillard
retained the right to modify the policy at any time, rendering its promise to arbitrate illusory.

The trial court clearly abused its discretion in denying Dillard’’s motion to compel arbitration. Accordingly, without
hearing oral argument, we conditionally grant the writ of mandamus and order the trial court to vacate its order
denying Dillard’’s motion to compel arbitration, and to enter a new order compelling arbitration of Garcia’’s claims.
Tex. R. App. P. 52.8(c)

Texas Supreme Compels Mobile Home Buyer to Arbitrate Claim Against Nonparty

In re Pa l m Harbor Homes, Inc. No. 04-0490 (Tex. June 9, 2006)
[home purchasers must arbitrate claim against manufacturer even though not a party to contract, but third-party
beneficiary]
IN RE PALM HARBOR HOMES, INC. AND PALM HARBOR HOMES I, L.P. D/B/A PALM HARBOR VILLAGE; from
Brazoria County; 1st district (01 02 00370 CV, 129 SW3d 636, 12 31 03) stay order issued November 19, 2004,
lifted
The Court conditionally grants the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Willett
Justice O'Neill delivered a concurring opinion

Texas Supreme Decides Case on Arbitration in Employment Context

In re Dallas Peterbilt , No. 05-0706 (Tex. June 16, 2006)
[Employer entitled to enforce arbitration]
IN RE DALLAS PETERBILT, LTD, L.L.P.; from Dallas County; 5th district (05 05 01034 CV, ___ SW3d ___, 08 19
05) supplemented
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally
grants the petition for writ of mandamus. Per Curiam Opinion
(“In this original proceeding, relator Dallas Peterbilt, Ltd., L.L.P. seeks to compel arbitration of claims filed by its
former employee, William Harris. The trial court denied Peterbilt’s motion to stay proceedings and to compel
arbitration, and the court of appeals summarily denied mandamus relief. __ S.W.3d __, 2005 Tex. App. LEXIS 6768.
Because the parties entered into a binding arbitration agreement that covers Harris’s claims, we conclude that the
trial court abused its discretion in denying Peterbilt’s motion to compel arbitration. We conditionally grant mandamus
relief. “ . . . “An employer may enforce an arbitration agreement entered into during an at-will employment
relationship if the employee received notice of the employer’s arbitration policy and accepted it. In re Dillard Dep’t
Stores, Inc., __ S.W.3d __,__, 2006 Tex. LEXIS 196, at *2 (Tex. 2006) (per curiam) (citing In re Halliburton Co., 80 S.
W.3d 566, 568 (Tex. 2002)). In granting mandamus relief in Halliburton, we stressed the importance of notice and
emphasized that the employee there received a one-page summary of the agreement to arbitrate. 80 S.W.3d at
568–69; see also Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986) (holding that notice is provided if
the employee has knowledge of the employment terms). Harris argues that the Summary is immaterial and that only
the underlying agreement itself, which he says he never received, can provide notice. We disagree. When
determining whether an employee received notice of a binding arbitration agreement, our cases do not confine that
“notice analysis” to the underlying agreement, but to all communications between the employer and employee. See
In re Halliburton Co., 80 S.W.3d at 569 (holding that a notice and summary given to the employee was unequivocal
notice); Hathaway, 711 S.W.2d at 229 (holding that contradicting written and oral communications did not constitute
conclusive proof of unequivocal notice)”)

In re Olga Palacios No. 05-0038 (Tex. June 30, 2006)(per curiam)
[arbitration] IN RE OLGA PALACIOS; from Travis County; 3rd district (03 04 00630 CV, ___ SW3d ___, 12 02 04)
Per Curiam Opinion

ARBITRATION CASES FROM THE
HOUSTON COURTS OF APPEALS

In re MHI Partnership (Tex.App. - Houston [1st.
Dist.] Dec. 1, 2006)(per curiam)
[motion to compel arbitration]
DENY PETITION FOR WRIT OF MANDAMUS: Per
Curiam
Before Justices Taft, Keyes and Hanks
01-06-00121-CV        In re MHI Partnership, Ltd.-
Appeal from 280th District Court of Harris County
(Judge Tony Lindsay]

In Re Walter Homes (Tex.App.- Houston [14th Dist.]
Nov. 9, 2006)(Fowler)
[arbitration, motion to compel]
MOTION OR WRIT GRANTED: Justice Fowler
Before Justices Fowler, Edelman and Frost
14-06-00635-CV        In Re: Jim Walter Homes, Inc.
Appeal from 149th District Court of Brazoria County
In this original proceeding, relator, Jim Walter
Homes, Inc., seeks a writ of mandamus ordering
respondent, the Honorable Robert May, presiding
judge of the 149th Judicial District Court of Brazoria
County, Texas, to vacate the portion of his June
16, 2006 order that denied arbitration. Real
parties Sarah Cryer, individually and on behalf of
Mildred Wooten, also seek a writ of mandamus.
Plaintiffs, however, request that the court be
ordered to vacate the portion of the June 16 order
that compelled arbitration. We have reviewed the
arbitration clause and hold that arbitration of all the
claims plaintiffs have asserted against Jim Walter
Homes is required, so we conditionally grant Jim
Walter Homes’s petition. Because we are without
jurisdiction to review an order compelling
arbitration under the Federal Arbitration Act, we
dismiss plaintiffs’ petition for lack of
jurisdiction.

D.R. Horton v. Brooks (Tex.App.- Houston [14th
Dist.] Nov. 2, 2006)(Yates)(appeal)
DISMISSED AS MOOT: Justice Brock Yates
(Before Chief Justice Hedges, Justices Brock Yates
and Guzman)
14-06-00099-CV D.R. Horton, Inc. v. Aurora Brooks
Appeal from 270th District Court of Harris County

In Re D.R. Horton, Inc. (Tex.App.-Houston [14th
Dist.] Nov. 2, 2006)(Yates)(mandamus)
[arbitration, mandamus]
MOTION OR WRIT GRANTED: Justice Brock Yates
(Before Chief Justice Hedges, Justices Brock Yates
and Guzman)
14-06-00152-CV In Re: D.R. Horton, Inc.
Appeal from 270th District Court of Harris
County

Chambers v. O’Quinn (Tex.App.– Houston [1st
Dist.] Sep. 29, 2006)(Taft)
[legal malpractice, compel arbitration, dismissal for
want of prosecution, DWOJ, appeal moot,
mootness]
DISMISS APPEAL: Opinion by Justice Taft
Before Justices Taft, Keyes and Hanks
01-04-01029-CV Bob Chambers, et al. v. John M.
O'Quinn, individually d/b/a O'Quinn & Laminack,
and John M. O'Quinn, P.C.
Appeal from 61st District Court of Harris County
(Hon. John Donovan)

Bison Building Materials v. Aldridge (Tex.App.-
Houston [1st Dist.] Sep. 14, 2006)(Jane Bland)
[arbitration, employment injury, workplace safety,
post-injury waiver]
DISMISS APPEAL: Opinion by Justice Bland
Before Justices Keyes, Alcala and Bland
01-05-00330-CV Bison Building Materials, Ltd. v.
Lloyd K. Aldridge
Appeal from 334th District Court of Harris County
(Judge Sharon McCally)
(“Bison Building Materials, Ltd. and Lloyd K.
Aldridge appeal an interlocutory trial court order
confirming in part and vacating in part an
arbitration decision that dismissed Aldridge’s claims
against Bison. We conclude that we lack statutory
authority to consider this interlocutory appeal and
therefore dismiss it for want of jurisdiction. ...
Strictly construing section 171.098(a), as we must,
we hold that the Order at issue here is not an
appealable interlocutory order. Walker Sand, 95 S.
W.3d at 516. “It is fundamental error for an
appellate court to assume jurisdiction over an
interlocutory order when not expressly authorized
to do so by statute.” Gathe v. Cigna Healthplan of
Tex., Inc., 879 S.W.2d 360, 363 (Tex. App.—
Houston [14th Dist.] 1994, writ denied) (citing New
York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d
677, 679 (Tex. 1990)). We do not imply a lack of
jurisdiction from the TAA provision allowing
interlocutory appeals of certain arbitration orders.
Rather, absent a final judgment, or statutory
authorization, we do not have state court appellate
jurisdiction in the first instance. We therefore
dismiss the appeal for want of jurisdiction.”)
Opinion Dissenting to this Court's Judgment by
Justice Keyes
(“This is a case of first impression for this Court
with important jurisdictional implications for Texas
arbitration law. Because I believe the majority has
incorrectly decided this appeal, I respectfully
dissent.”)

Syleasing v. Tejas Avco (Tex.App.- Houston [14th
Dist.] Aug. 10, 2006)(Hudson)
[arbitration in the absence of agreement, equitable
estoppel exception, motion to compel arbitration
denied, contract, quantum meruit]
AFFIRMED: Opinion by Justice Seymore
Before Justices Hudson, Frost and Seymore
14-05-00212-CV Skyleasing, LLC v. Tejas Avco
Inc., D/B/A Houston Southwest Airport
Appeal from 240th District Court of Fort Bend
County
(“A party’s right to litigate a dispute that the party
has not agreed to arbitrate is at least as worthy of
protection as a bargained for right to arbitration.”
Yazdani Beioky v. Bhandara, No. 14-00-01509-CV,
2001 WL 1429414, at *3, (Tex. App.-Hous. [14
Dist.] Nov. 15, 2001, no pet.) (not designated for
publication) (citing Freis, 877 S.W.2d at 284); see
Jenkens & Gilchrist, 87 S.W.3d at 201. Because
the “limited” circumstances warranting application
of the equitable estoppel doctrine are not clearly
satisfied here, we hold the trial court did not abuse
its discretion by finding the Airport should not lose
its right to litigate its dispute with Skyleasing - a
complete stranger to the lease. Accordingly, we
overrule Skyleasing’s sole issue and affirm the trial
court’s order denying Skyleasing’s motion to
compel arbitration.”)

Engineer v. Engineer (Tex.App.- Houston [14th
Dist.] Jan. 31, 2006)(Edelman)
(divorce, property division, mediated agreement,
arbitration decision)
REVERSED AND REMANDED: Opinion by Justice
Edelman
(Before Justices Brock Yates, Edelman and
Guzman)
14-03-00660-CV        Katy Engineer v. Mike
Engineer
Appeal from 387th District Court of Fort Bend
County (Hon. Robert J. Kern)

In Re Autotainment Partners L.P. (Tex.App.-
Houston [14th Dist.] Jan. 20, 2006)(Hudson)
(employment arbitration)
MOTION OR WRIT GRANTED: Opinion by Justice
Hudson
Before Justices Hudson, Frost and Seymore
14-05-01035-CV        In Re Autotainment Partners
Limited Partnership D/B/A Planet Ford and
Worldwide Autotainment Inc.
Appeal from 127th District Court of Harris County
(Judge Sharolyn P. Wood)