Monday, May 26, 2008

In re Jindal Saw Limited (Tex.App.- Houston 2008)

In re Jindal Saw Limited No. 01-07-01068-CV (Tex.App.- Houston [1st Dist.] May 22, 2008) (Alcala) (workplace safety, occupational injury, worker's comp, nonsubscriber, arbitration, wrongful death, survival action) Opinion by Justice Else Alcala Panel Composition: Justices Tim Taft, Evelyn Keyes, and Elsa Alcala Full style of this case: In re Jindal Saw Limited, Jindal Enterprises LLC, and Saw Pipes USA Appeal from Probate Court No 1 of Harris County Trial Court Judge: Hon. Russell Austin Disposition: Grant Petition for Writ of Mandamus Attorneys: Levi G McCathern II, Jeffrey Christopher Wright Attorney Kurt B. Arnold, Marvin B. Peterson, Micajah Daniel Boatright By petition for writ of mandamus, relators, Jindal Saw Limited, Jindal Enterprises LLC, and Saw Pipes USA, Inc. (collectively, “Saw Pipes”), challenge the trial court’s October 11, 2007 order denying Saw Pipes’ motion to compel arbitration.[1] In two issues, Saw Pipes contends that the trial court abused its discretion by denying its motion to compel arbitration of the survival action and wrongful-death claims because an enforceable arbitration agreement exists and the claims fall within the scope of the arbitration agreement. We conclude that the non-signatories to the arbitration agreement are bound to arbitrate the survival action claims because the signatory agreed to arbitrate his claims against Saw Pipes. We also conclude, however, that the non-signatories’ wrongful-death claims are not bound by the arbitration agreement because those claims are personal to the non-signatories and they did not agree to arbitrate the claims. We grant the petition for writ of mandamus for the survival action and deny the petition for writ of mandamus for the wrongful-death claims. * * * Conclusion By denying the motion to compel arbitration in the October 11, 2007 order, the trial court abused its discretion with regard to the survival claim and did not abuse its discretion with regard to the wrongful-death claims. Accordingly, we grant the petition for writ of mandamus for Yvonne’s survival claim and deny the petition for writ of mandamus for the wrongful-death claims of Yvonne and the children. We lift the stay that we issued when the petition was filed. We are confident that the trial court will act promptly in accord with this opinion, and our writ will issue only if it does not. Elsa Alcala Justice

Tuesday, May 20, 2008

No Waiver: In Re CitiGroup Global Markets, Inc. (Tex. May 16, 2008)

Texas Supreme Court rejects arbitration waiver theory in suit brought by customers Contrary to its recent decision vacating an arbitration award in favor of homeowners in a residential construction dispute (in which it held consumers had waived arbitration by conducting extensive discovery), the Texas Supreme Court finds no waiver of contractual right to arbitrate in case in which corporate defendant had litigated in several forums, but had reserved right to move for arbitration in suit brought by investors, which it did on remand to state court. In Re CitiGroup Global Markets, Inc., No. 06-0886 (Tex. 2008) (per curiam) (arbitration compelled, no express or implied waiver of contractual right to arbitrate found) Also see --> Other per curiam decisions Texas Arbitration Case Law - Decisions ═════════════════════════════════════ In Re Citigroup Global Markets, Inc. (Tex. May 16, 2008) ═════════════════════════════════════ PER CURIAM Parties that “conduct full discovery, file motions going to the merits, and seek arbitration only on the eve of trial” waive any contractual right to arbitration. In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 764 (Tex. 2006). The relator here did none of those, but instead spent seven months removing the case to various federal courts before finally filing an answer in state court with a contemporaneous motion to compel arbitration. The courts below held the relator’s transfer efforts waived arbitration. 202 S.W.3d 477. We disagree, and thus conditionally grant mandamus relief. See In re Weekley, 180 S.W.3d 127, 130 (Tex. 2005) (“Mandamus relief is proper to enforce arbitration agreements governed by the FAA.”). Robert and Natalie Nickell had investment accounts with Citigroup Global Markets, Inc. (formerly known as Salomon Smith Barney, Inc.), and signed agreements to arbitrate any disputes “concerning or arising from” their accounts. The Nickells allegedly lost more than $4 million after they invested in WorldCom Inc. based on research reports by a Citigroup analyst. The Nickells sued Citigroup, which immediately removed the case to federal court on the ground that it related to WorldCom’s bankruptcy proceedings. In federal court, the Nickells moved to remand and Citigroup moved to transfer the case to a federal multidistrict litigation (“MDL”) court in New York managing similar WorldCom-related suits against Citigroup. Citigroup moved to stay proceedings in the federal court pending the MDL panel’s decision, specifically reserving its defense “that Plaintiffs arbitrate, not litigate, their claims.” The MDL panel conditionally transferred the case to the MDL court. The Nickells asked the panel to vacate the order, which the panel denied before transferring the case. Once in the MDL court, a stay order excused Citigroup from filing an answer or pleading any defenses. Undeterred by past failures, the Nickells filed another motion for remand in the MDL court. Undeterred by past successes, Citigroup gave up the jurisdictional battle and agreed to a remand of the case back to state court. In all, the parties spent about seven months shuttling between the federal forums managing WorldCom cases. Back in state court, Citigroup simultaneously filed an original answer and a motion to compel arbitration. The trial court denied the motion, and the court of appeals denied mandamus relief on the ground that Citigroup expressly waived arbitration by statements reflecting an intent to litigate the dispute. 202 S.W.3d at 483–84. The parties agree the Federal Arbitration Act applies. See 9 U.S.C. § 1 et seq. “[A] party waives an arbitration clause by substantially invoking the judicial process to the other party’s detriment.” Perry Homes v. Cull, ___ S.W.3d ___, ___ (Tex. 2007). Waiver is a legal question for the court based on the totality of the circumstances, and asks whether a party has substantially invoked the judicial process to an opponent’s detriment, the latter term meaning inherent unfairness caused by “a party’s attempt to have it both ways by switching between litigation and arbitration to its own advantage.” Id. at __. The court of appeals held that Citigroup expressly waived arbitration — not by its conduct transferring the case to the federal and MDL courts, but by statements in those motions suggesting it was doing so for the purposes of litigation, not arbitration. 202 S.W.3d at 484 (holding that “removal related conduct alone does not constitute waiver,” but placing reliance “primarily upon [Citigroup’s] written explanations for the removal and transfer.”). We need not decide whether the Nickells are correct that express waiver is governed by different rules than those that govern implied waiver, as we disagree that these statements rise to the level of an express waiver. Citigroup never opposed arbitration, nor did it expressly waive its arbitration rights. To the contrary, it reserved the right to request arbitration early on and so informed the Nickells. Its statements in various transfer pleadings about the case’s similarity to others already transferred, the potential savings in consolidated discovery, and the potential convenience of parties and witnesses in consolidated proceedings were required by statute to justify transfer to the MDL court. See 28 U.S.C. § 1407(a) (providing for MDL transfer of “civil actions involving one or more common questions of fact” if the transfer “will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions”). Moreover, its statements about how much discovery could be avoided by transfer to the MDL court reflect an effort to avoid litigation activity rather than duplicate it. See In re Serv. Corp. Int’l, 85 S.W.3d 171, 175 (Tex. 2002) (“Relators’ efforts in moving to dismiss and staying discovery were to avoid litigation, not participate in it.”). Additionally, we disagree with the Nickells that transfer to an MDL court is necessarily inconsistent with seeking arbitration. Arbitration is possible for consolidated actions as well as individual ones. See Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452–53 (2003). Courts can issue inconsistent orders on arbitration just as they can on discovery or other matters that MDL courts are designed to coordinate. Thus, Citigroup’s transfer to the MDL court does not indicate it had abandoned arbitration. Because Citigroup never expressly waived or objected to arbitration, the question here is whether it impliedly waived arbitration. Citigroup’s actions and statements in requesting transfer to the MDL court are certainly factors to be considered in the totality-of-the-circumstances test. See Perry Homes, ___ S.W.3d at ___. But they cannot be taken out of the context in which they were made or the remainder of Citigroup’s litigation conduct. There is no dispute that Citigroup’s actual litigation conduct (as opposed to statements of its intentions) was limited to jurisdictional transfers, not the merits. The Nickells concede Citigroup never sent or responded to any written discovery, conducted no depositions, filed no motions (or even an answer) relating to the merits before seeking arbitration, and engaged in no litigation conduct whatsoever other than transferring the case to the federal and MDL courts. In these circumstances, Citigroup’s statements about what discovery might be saved in the MDL court are simply not enough to show substantial invocation of the judicial process. Finally, the Nickells argue their contracts bind them to arbitration with Citigroup’s predecessors but not Citigroup. But each contract here specifically stated that its provisions “shall inure to the benefit of Smith Barney’s present organization, and any successor organization or assigns.” Citigroup established (and the Nickells do not dispute) that it is a successor organization to Smith Barney, and thus fell heir to the Nickells’ contracts and the arbitration clauses within them. Because the Nickells failed to show Citigroup waived its contractual right to arbitration, we conditionally grant Citigroup’s petition for writ of mandamus without hearing oral argument, see Tex. R. App. P. 52.8(c), and direct the trial court to compel arbitration. We are confident that the trial court will promptly comply, and our writ will issue only if it does not. OPINION DELIVERED: May 16, 2008 ============ Full case style: IN RE CITIGROUP GLOBAL MARKETS, INC. (F/K/A SALOMON SMITH BARNEY, INC.), CITIGROUP, INC., AND STACY OELSEN; from Dallas County; 5th district (05-05-01430-CV, 200 S.W.3d 742, 06-28-06) Without hearing oral argument, the Texas Supreme Court conditionally grants the petition for writ of mandamus. RELATED LINKS: 2008 Texas Supreme Court Opinions | Tex. 2008 arbitration decisions | Mandamus Decisions of the Tex. Sup. Ct.

Family Code trumps CPRC provision permitting interlocutory appeal of order confirming arbitration award

Houston Court of Appeals rules that prohibition of temporary order appeals in family cases extends to order confirming an arbitration award arising from an agreement to mediate/arbitrate temporary orders issues in a pending divorce case involving children. Finding it lacks jurisdiction, the appellate court declines to reach the merits and dismisses the attempted interlocutory appeal. O P I N I O N This is an attempted appeal from an interlocutory order signed October 31, 2007, confirming an arbitration award on temporary orders entered in a pending divorce and suit affecting the parent-child relationship (SAPCR). Because we lack jurisdiction over this interlocutory appeal, we dismiss. Texas strongly encourages alternative dispute resolution, particularly in family law matters. See Tex. Civ. Prac. & Rem. Code Ann. ' 154.002 (Vernon 2005).[1] The Family Code expressly permits binding arbitration in divorce and SAPCR cases. See Tex. Fam. Code Ann. '' 6.601, 153.0071 (Vernon 2005 & Supp. 2007).[2] The parties agreed to mediate before Judge Maryellen Hicks and reached an agreed binding mediated settlement agreement (MSA) as to temporary orders pending conclusion of the divorce. The agreement provided that if any dispute arose as to the entry of the temporary orders, the dispute would be resolved in binding arbitration before Judge Hicks. Specifically, the MSA provided as follows: Said Arbitrator may decide what constitutes substantial compliance with all terms, and any omitted terms, of this Agreement that were discussed and agreed upon in the mediation. Maryellen W. Hicks may make disposing decisions concerning the language of this Order and submit the draft approved by her to the Court for signature and entry. Appellant was ordered to pay certain fees, including attorney's fees, as part of the MSA, and the parties returned to arbitration when a dispute arose over compliance with these orders. It is from the confirmation of the arbitration award ordering compliance with the temporary orders that this appeal arises.[3] Generally, appeals may be taken only from final judgments. Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed only when expressly permitted by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding ). Texas courts strictly construe statutes authorizing interlocutory appeals. America Online, Inc. v. Williams, 958 S.W.2d 268, 271 (Tex. App.CHouston [14th Dist.] 1997, no writ). The Texas Family Code specifically precludes the interlocutory appeal of temporary orders, except those appointing a receiver. See Tex. Fam. Code Ann. ' 6.507 (Vernon 2006); see also Tex. Fam. Code Ann. ' 105.001(e) (Vernon 2006) (stating temporary orders in suits affecting the parent‑child relationship are not subject to interlocutory appeal). Because it appeared to this court that appellant is attempting to appeal temporary orders, which the Family Code expressly prohibits, notification was transmitted to the parties of this court's intention to dismiss the appeal for want of jurisdiction unless appellant filed a response demonstrating grounds for continuing the appeal. See Tex. R. App. P. 42.3(a). Appellant filed a response to our notice, asserting that the appeal is permitted by Section 171.098 of the Texas Civil Practice & Remedies Code, which provides for an appeal of an order confirming an arbitration award. See Tex. Civ. Prac. & Rem. Code Ann. ' 171.098(a) (Vernon 2005). Section 311.026 of the Texas Government Code provides that when two statutes are in conflict with each other, the specific statute "prevails as an exception to the general" statute. Tex. Gov't Code Ann. ' 311.026(b) (Vernon 2005). Applying this principle, Texas courts of appeals have held that the specific Family Code provision limiting temporary order appeals controls over the general statute in the Civil Practice and Remedies Code permitting interlocutory appeals from temporary injunctions. See, e.g., Marley v. Marley, No. 01-05-00992-CV, 2006 WL 3094325, at *2 (Tex. App.- Houston [1st Dist.] 2006, pet. denied) (mem. op.) (holding section 51.014(4) of the Civil Practice and Remedies Code permitting appeals from temporary injunctions did not control over prohibition in section 6.502 of interlocutory appeals from temporary orders in divorce proceedings); Cook v. Cook, 886 S.W.2d 838, 839 (Tex. App.- Waco 1994, no writ) (rejecting argument that section 51.014(4) allowed an interlocutory appeal from temporary orders issued under Family Code section 3.58, the identical former version of section 6.502). Because sections 6.507 and 105.001(e) of the Family Code apply specifically to divorce and SAPCR proceedings, they prevail over the application of the general arbitration statute, section 171.098 of the Civil Practice and Remedies Code. Appellant also asserts that the Family Code prohibition on appeals from temporary orders does not apply because the order being appealed is not an order entered under Title 1, Subchapter F of the Family Code, governing Temporary Orders, but is instead under Subchapter G, providing for alternative dispute resolution, including arbitration. This argument ignores the fact that the arbitration in this case concerned temporary orders entered during the pendency of the divorce. We hold that the trial court's order confirming a binding arbitration order entered during the pendency of a divorce and SAPCR proceeding may not be challenged by interlocutory appeal. Therefore, we lack jurisdiction over this appeal. Accordingly, the appeal is ordered dismissed. PER CURIAM Judgment rendered and Opinion filed May 15, 2008. Panel consists of Chief Justice Hedges and Justices Fowler and Boyce. [1] "It is the policy of this state to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent‑child relationship, including the mediation of issues involving conservatorship, possession and support of children, and the early settlement of pending litigation through voluntary settlement procedures." Tex. Civ. Prac. & Rem. Code Ann. ' 154.002 (Vernon 2005). [2] "On written agreement of the parties, the court may refer a suit for dissolution of a marriage to arbitration. The agreement must state whether the arbitration is binding or nonbinding." Tex. Fam. Code Ann. ' 6.601 (Vernon 2005); see also Tex. Fam. Code Ann. ' 153.0071 (Vernon Supp. 2007) (same for a SAPCR). [3] "If the parties agree to binding arbitration, the court shall render an order reflecting the arbitrator's award.)." Tex. Fam. Code Ann. ' 6.601(b) (Vernon 2005). "If the parties agree to binding arbitration, the court shall render an order reflecting the arbitrator's award unless the court determines at a non-jury hearing that the award is not in the best interest of the child." Tex. Fam. Code Ann. ' 153.0071(b) (Vernon Supp. 2007) Mason v. Mason, No. 14-07-00991-CV (Tex.App.- Houston [14th Dist.] May 15, 2008)(per curiam) (family court mediation and arbitration, no interlocutory appeal of order on motion to confirm arbitration award in suit affecting the parent-child relationship, divorce case) Full case style: Jason S. Mason v. Patricia A. Mason Appeal from 308th District Court of Harris County Trial Court Judge: Judge Georgia Dempster

Failure to prove existence of agreement to arbitrate warrants denial of motion to compel arbitration

Houston Court of Appeals holds that motion to compel arbitration was properly denied in the trial court where party seeking arbitration failed prove that valid arbitration agreement existed. No authenticating affidavit was filed. In Re Universal Finances Consulting Group, Inc. No. 14-08-00226-CV (Tex.App.- Houston [14th Dist.] May 20, 2008)(Boyce) (Motion and mandamus petition to compel arbitration denied in the absence of proper showing that valid agreement existed)

On March 24, 2008, relators, Universal Finances Consulting Group, Inc., Zhuodao Zhao, John J. Dunn, and Universal Med-Health Services, Inc., filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, relators ask this court to compel the Honorable Tony Lindsay, presiding judge of the 280th District Court of Harris County, to vacate her order denying their amended motion to compel arbitration and to stay the trial court proceedings. On August 16, 2007, real party in interest, Bill Cargill, filed suit against relators for the return of money he had advanced under a purported escrow agreement to obtain a standby letter of credit to fund the operations of Agri Dynamic Technology, S.A. de C.V., a Mexican corporation formed for agricultural reclamation and development in Mexico. Relying on an arbitration provision contained in an asset purchase agreement that was referenced in the escrow agreement, relators filed a motion to compel arbitration and an amended motion for arbitration. After a hearing, respondent denied relators' amended motion to compel arbitration because the "motion is not supported by Defendants [sic] pleadings and . . . Defendants have failed to provide competent evidence in support of their motion that establishes that there is a valid arbitration agreement, . . ."To obtain mandamus relief, the relator must demonstrate that (1) the trial court clearly abused its discretion; and (2) there is no adequate remedy by appeal. In re Sw. Bell Tele. Co., 226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding). The trial court abuses its discretion if it reaches a decision that constitutes a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). As to factual matters, the relator must establish that the trial court could have reached only one decision. Id. at 840. The party seeking to compel arbitration under the FAA must establish that (1) a valid arbitration agreement exists, and (2) the claims at issue fall within that agreement's scope. In re Dillard Dep't Stores, Inc., 186 S.W.3d 514, 515 (Tex. 2006) (orig. proceeding) (per curiam). Whether a valid arbitration agreement exists is a legal question subject to de novo review. In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006). Cargill objected that the escrow agreement and the asset purchase agreement are not authenticated and, therefore, are not competent evidence of an agreement to arbitrate. No presumption of arbitrability arises until the court has found that there is an enforceable arbitration agreement. In re Jebbia, 26 S.W.3d 753, 757 (Tex. App.- Houston [14th Dist.] 2000, orig. proceeding). To compel arbitration on a summary motion, a trial court must first determine as a matter of law that the parties have agreed to arbitrate. Id. (citing Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992) (orig. proceeding)). The evidentiary standards for a motion to compel arbitration are the same as for a motion for summary judgment. TMI, Inc. v. Brooks, 225 S.W.3d 783, 794 (Tex. App.- Houston [14th Dist.] 2007, pet. denied) (op. on reh'g). Under the summary judgment standard, copies of documents must be authenticated in order to constitute competent summary judgment evidence. Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986) (per curiam). A properly sworn affidavit stating that the attached documents are true and correct copies of the original authenticates the copies so they may be considered as summary judgment evidence. Id. Here, no affidavit was submitted with either the motion to compel or the amended motion to compel authenticating the escrow agreement or the asset purchase agreement. We conclude that there is no competent evidence of an agreement to arbitrate. Because respondent could not have properly considered the escrow agreement or the asset purchase agreement, she did not abuse her discretion by denying relators' amended motion to compel arbitration. Relators have not established their entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relators' petition for writ of mandamus. PER CURIAM Petition Denied and Memorandum Opinion filed May 20, 2008. Panel consists of Chief Justice Hedges and Justices Boyce and Hudson.[1]

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Senior Justice J. Harvey Hudson sitting by assignment. In Re Universal Finances Consulting Group, Inc. (Tex.App.- Houston [14th Dist.] May 20, 2008)(Boyce) (arbitration mandamus, motion to compel arbitration properly denied)(Opinion by Justice Bill Boyce) Before Chief Justice Hedges, Justices Hudson and Boyce 14-08-00226-CV In Re Universal Finances Consulting Group, Inc., Zhuodao Zhoa, John J. Dunn, and Universal Med-Health Services, Inc. Appeal from 280th District Court of Harris County Trial Court Judge: Hon. Tony Lindsay