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] -------------------------------------------------------------------------------- [1] 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

Sunday, April 27, 2008

Aspen Technology, Inc. v. Shasha (Tex.App. - Houston March 2008)

An employer and its employee entered into two arbitration agreements - one in which they did not specify the arbitration rules, arbitration site, or number of arbitrators and a subsequent agreement in which they specified a three-arbitrator panel in Boston, Massachusetts, in accordance with the commercial arbitration rules of the American Arbitration Association. The trial court compelled arbitration in Houston, Texas, before a single arbitrator under the first agreement but refused to compel arbitration under the second agreement, impliedly ruling that the second agreement is illusory and substantively unconscionable. The Houston Court of Appeals concludes that mandamus relief is warranted and directs the trial court to vacate its orders compelling arbitration under the first agreement and to issue an order compelling arbitration under the second agreement. Given this ruling, the employer's interlocutory appeal is rendered moot. Aspen Technology, Inc. vs. Abe Shasha , In re Aspen Technology, Inc. (Tex.App.- Houston [1st Dist.] Mar. 27, 2008) (Opinion by Justice Kem Thompson Frost) (interlocutory appeal dismissed, arbitration mandamus granted) Appellate court: First Court of Appeals in Houston --> See more March 2008 Opinions Cause Nos: No. 14-07-00303-CV , No. 14-07-00469-CV Appeal from 165th District Court of Harris County, Texas (Houston) Trial Court Judge: District Court Judge Hon. Elizabeth Ray O P I N I O N An employer and its employee entered into two arbitration agreements C one in which they did not specify the arbitration rules, arbitration site, or number of arbitrators and a subsequent agreement in which they specified a three-arbitrator panel in Boston, Massachusetts, in accordance with the commercial arbitration rules of the American Arbitration Association. The trial court compelled arbitration in Houston, Texas, before a single arbitrator under the first agreement but refused to compel arbitration under the second agreement, impliedly ruling that the second agreement is illusory and substantively unconscionable. We conclude mandamus relief is warranted. For the reasons explained below, we direct the trial court to vacate its orders compelling arbitration under the first agreement and to issue an order compelling arbitration under the second agreement. Given this ruling, the employer's interlocutory appeal is rendered moot. I. Factual and Procedural Background Appellee/real party in interest Abe Shasha began his employment in December 2001, with the predecessor of appellant/relator Aspen Technology, Inc. At that time, Shasha signed an agreement regarding his employment, in which he and Aspen’s predecessor agreed to arbitrate any and all disputes or controversies that might arise between Shasha and Aspen’s predecessor, including without limitation employment disputes (hereinafter “2001 Agreement”). On October 28, 2005, Shasha signed an agreement regarding his incentive compensation for Aspen fiscal year 2006 (hereinafter “2006 Agreement”). In the 2006 Agreement, Shasha agreed that any legal action against Aspen would be settled exclusively by arbitration before a three-member panel in Boston, Massachusetts in accordance with the commercial arbitration rules of the American Arbitration Association (hereinafter “AAA”). Early in 2006, Shasha notified Aspen that he had a dispute regarding his commissions. In May 2006, Shasha resigned from his position with Aspen and soon thereafter filed suit against Aspen in the trial court below asserting contract and tort claims. Aspen filed a motion to compel arbitration, relying on both the 2001 Agreement and the 2006 Agreement. In response, Shasha admitted that he executed both the 2001 Agreement and the 2006 Agreement. Shasha argued that the arbitration provision in the 2006 Agreement replaced the arbitration provision in the 2001 Agreement. Shasha did not dispute that his 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 allegedly retains a unilateral, unrestricted right to terminate this arbitration agreement; and (2) the clause imposes such exorbitant costs on Shasha that it is substantively unconscionable. The trial court granted Aspen’s motion to compel, ordered all claims to arbitration, and stayed the case pending the conclusion of the arbitration. However, the trial court’s first order did not specify the site for the arbitration or the agreement under which the trial court ordered the parties to arbitrate the claims. Confusion arose as to whether the trial court had ordered arbitration under the 2006 Agreement. Aspen asserted that the trial court had ordered the parties to arbitrate the claims in Boston, Massachusetts, under the 2006 Agreement. Shasha filed a motion for reconsideration and clarification. In this motion, Shasha stated that the trial court’s order was ambiguous as to whether the trial court had compelled the parties to arbitrate the claims 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 compel arbitration under the 2001 Agreement. However, to the extent the trial court had ordered arbitration under the 2006 Agreement, Shasha moved the court to reconsider its rejection of the two grounds upon which Shasha had asserted that this arbitration agreement is unenforceable. Shasha requested the trial court to order the parties to arbitration under the 2001 Agreement in Houston, Texas, with a single arbitrator. Aspen filed a response in opposition in which it argued that no clarification was necessary because the trial court already had ordered the parties to arbitrate in Boston, Massachusetts, under the 2006 Agreement. Aspen again presented argument in support of its position that there is no merit in Shasha’s two objections to the enforceability of the arbitration clause in the 2006 Agreement. Aspen asserted that the Federal Arbitration Act (“Federal Act”) and the Texas Arbitration Act (“Texas Act”) both mandate that Shasha’s claims be arbitrated in Boston, Massachusetts before a panel of three arbitrators pursuant to the commercial arbitration rules of the AAA (“Commercial Rules”) and that the proceedings in the trial court be stayed pending completion of arbitration. Aspen submitted to the trial court a proposed order denying Shasha’s motion. In this proposed order, the trial court would compel arbitration in Boston, Massachusetts, before a panel of three arbitrators pursuant to the Commercial Rules and stay the proceedings in the trial court until the conclusion of the arbitration. Instead of signing this proposed order, the trial court signed an order in which it granted Shasha’s motion and compelled arbitration in Houston, Texas, with a single arbitrator under the 2001 Agreement. Aspen has appealed this order under section 171.098(a)(1) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. ' 171.098(a)(1) (Vernon 2005). Aspen also filed a petition for writ of mandamus. This court has consolidated these two proceedings. II. Standard of Review The Federal Act applies to an arbitration agreement in any contract involving interstate commerce, to the full extent of the Commerce Clause of the United States Constitution. See 9 U. S. C. ' 2 (1999); Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 277-81, 115 S. Ct. 834, 839-41, 130 L. Ed. 2d 753 (1995); In re L&L Kempwood Assocs., 9 S.W.3d 125, 127 (Tex. 2006). Shasha does not dispute that the Federal Act applies. The 2001 Agreement and the 2006 Agreement both involve interstate commerce, and therefore, the Federal Act applies. Mandamus relief is available when the trial court clearly abuses its discretion by erroneously denying a party its contracted for arbitration rights under the Federal Act. See In re D. Wilson Const. Co., 196 S.W.3d 774, 780-81 (Tex. 2006) (orig. proceeding); In re Igloo Prods. Corp., 238 S.W.3d 574, 577 (Tex. App.- Houston [14th Dist.] 2007, orig. proceeding [mand. denied]). Therefore, Aspen’s right to mandamus relief hinges on whether the trial court erred by refusing to compel arbitration under the 2006 Agreement.[1] On mandamus review of factual issues, a trial court will be held to have abused its discretion only if the party requesting mandamus relief establishes that the trial court reasonably could have reached only one decision, and not the decision the trial court made. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Mandamus review of issues of law is less deferential. A trial court abuses its discretion if it clearly fails to analyze the law correctly or apply the law to the facts. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005). In construing the 2006 Agreement, our primary concern is to ascertain and give effect to the intentions of the parties as expressed in the contract. Kelley Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998). To ascertain the parties’ true intentions, we examine the entire agreement in an effort to harmonize and give effect to all provisions of the contract so that none will be rendered meaningless. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex. 1999). Whether a contract is ambiguous is a question of law for the court. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation. Id. However, when a written contract is worded such that it can be given a certain or definite legal meaning or interpretation, it is unambiguous, and the court construes it as a matter of law. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003). III. Issues and Analysis A. Does this court lack mandamus jurisdiction because the trial court did not deny a motion to compel arbitration? Shasha first argues that this court lacks jurisdiction to consider Aspen’s mandamus petition because the trial court allegedly did not deny Aspen’s application to compel arbitration. According to Shasha, Aspen moved to compel arbitration under either the 2001 Agreement or the 2006 Agreement, and the trial court granted this request by compelling arbitration under the 2001 Agreement. Though Aspen based its motion to compel on both agreements, in response to Shasha’s motion for reconsideration and clarification, Aspen relied on the 2006 Agreement and requested the trial court to order arbitration of Shasha’s claims in Boston, before a panel of three arbitrators pursuant to the Commercial Rules. The trial court refused to do so, and instead, it ordered the parties to arbitrate the claims in Houston, with a single arbitrator under the 2001 Agreement. Mandamus relief is available if a trial court abuses its discretion by erroneously denying a party its contracted for arbitration rights under the Federal Act. See In re D. Wilson Const. Co., 196 S.W.3d 774, 780-81. Impliedly finding that the arbitration clause in the 2006 Agreement is illusory and substantively unconscionable, the trial court denied Aspen its contracted for arbitration rights under the 2006 Agreement, which is governed by the Federal Act. Therefore, this court has mandamus jurisdiction to consider whether the trial court clearly abused its discretion in so ruling. See In re D. Wilson Const. Co., 196 S.W.3d 774, 780-81. B. Did the trial court err by concluding that the arbitration clause in the 2006 Agreement is illusory? Shasha asserted in the trial court that the arbitration clause in the 2006 Agreement is illusory because Aspen allegedly retains a unilateral, unrestricted right to terminate this arbitration agreement. If one party to an arbitration agreement retains such a right, then the arbitration agreement is illusory and unenforceable. See In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 677 (Tex. 2006). Shasha asserts that Aspen retains a unilateral, unrestricted right to terminate the arbitration provision in the 2006 Agreement based on the following language in that agreement: The incentive compensation plan administrator (Vice President of Worldwide Sales Operations) is responsible for the interpretation of the plan. If the meaning or interpretation of the plan wording requires clarification after consideration of all the facts, the Senior Vice President, Worldwide Sales and Business Development (SVP Sales) or his/her designee(s), if any[,] will issue a written ruling, which will be final. In addition, the SVP Sales will be responsible for the periodic review of the plan and may make revisions from time to time. (emphasis added). The title of the 2006 Agreement is “Aspen Technology, Inc. FY 2006 Incentive Compensation Plan Global Account Manager (GAM).” In the 2006 Agreement, there is no definition of the term “plan.” Shasha asserts that, under the above language, the SVP Sales may make revisions to the 2006 Agreement from time to time. Presuming that the above language refers to the 2006 Agreement as “the plan,” and presuming that the SVP Sales may review the 2006 Agreement and make revisions from time to time, this is not equivalent to stating that the SVP Sales has a unilateral, unrestricted right to terminate the arbitration provision in the 2006 Agreement. Under the 2006 Agreement, “[a]ny additional terms or conditions, or verbal or written agreements between [Shasha] and [Aspen] will not apply unless explicitly agreed to and approved in a signed writing by both the SVP Sales and [Shasha].” We conclude that, under the unambiguous language of the 2006 Agreement, Aspen does not retain a unilateral, unrestricted right to modify or terminate the arbitration provision in that agreement; therefore, that arbitration provision, as a matter of law, is not illusory. See In re Dillard Dept. Stores, Inc., 186 S.W.3d 514, 516 (Tex. 2006) (holding that arbitration agreement did not give employer unilateral, unrestricted right to modify the arbitration agreement). The cases on which Shasha relies are not on point. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 228B30 (Tex. 2003) (concluding that it was unclear whether employer retained unilateral right to terminate arbitration agreement without notice in case in which agreement stated that the employer “reserves the right to unilaterally abolish or modify any personnel policy without prior notice”); In re C & H News Co., 133 S.W.3d 642, 646 (Tex. App.- Corpus Christi 2003, orig. proceeding) (concluding agreement was illusory because it contained provision giving employer the ability to modify or delete provisions as the employer deems appropriate, with or without prior notification to employees); Tenet Healthcare Ltd. v. Cooper, 960 S.W.2d 386, 386-88 (Tex. App.- Houston [14th Dist.] 1998, pet. dism’d w.o.j.) (holding arbitration agreement contained in employee handbook was not supported by consideration, in case in which handbook stated that (1) it was not intended to constitute a legal contract with any employee because that could only occur with a written agreement executed by a facility executive director and (2) the employer reserved the right to amend or rescind any provision of the handbook as it deemed appropriate in its sole and absolute discretion). Therefore, the trial court clearly abused its discretion to the extent it concluded that the arbitration clause in the 2006 Agreement is illusory. C. Did the trial court err by concluding that the arbitration clause in the 2006 Agreement is substantively unconscionable? Shasha asserted in the trial court that the arbitration clause in the 2006 Agreement imposes such exorbitant costs on him that it is substantively unconscionable. Under certain circumstances, arbitration costs could be so high that they preclude a litigant from effectively vindicating his rights through arbitration. See Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 90-92, 121 S. Ct. 513, 522-23, 148 L.Ed.2d 373 (2000). A party seeking to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive bears the burden of providing specific evidence showing a likelihood that he would incur excessive arbitration costs. See Green Tree Fin. Corp., 531 U.S. at 90-92, 121 S. Ct. at 522-23; In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex. 2007); In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001); TMI, Inc. v. Brooks, 225 S.W.3d 783, 796 (Tex. App.- Houston [14th Dist.] 2007, pet. denied). The 2006 Agreement is silent as to arbitration costs. In the trial court Shasha offered an affidavit from one of his lawyers. In this affidavit, Shasha’s counsel testifies, in pertinent part, to the following: ● Based on his personal knowledge of the Commercial Rules and the AAA employment arbitration rules (“Employment Rules”), claims arbitrated under the Commercial Rules are significantly more costly to the employee/claimant than claims arbitrated under the Employment Rules. This is because under the Employment Rules, the employee/claimant is only responsible for a filing fee of $50-150; whereas under the Commercial Rules, the employee/claimant is responsible for the filing fee, the case service fee, and one-half of all the arbitrator fees unless the arbitration agreement states otherwise. ● The AAA’s filing fee for this case would be $4,250, and the AAA case service fee would be $1,750. The AAA administration fee would be $325. Although arbitrator fees vary for each arbitrator, a “median estimate” is $305.50 per hour for each arbitrator based on ten arbitrator resumes for the Boston area from the AAA website. A conservative estimate of total arbitrator fees based on four days of work per arbitrator is $24,000 (32 hours x $250/hour per arbitrator). ● Shasha’s air fare and hotel costs for an arbitration in Boston would be at least $2,700. Presuming that arbitrations under the Commercial Rules are significantly more costly than arbitrations under the Employment Rules, this testimony alone does not provide specific evidence as to Shasha’s likely costs to arbitrate under the 2006 Agreement. Though Shasha’s counsel provides projected fees for filing with the AAA, AAA case service, and AAA administration, this projection is based on the premise that the AAA would administer the arbitration.[2] However, the arbitration provision in the 2006 Agreement does not require that the AAA conduct or administer the arbitration; rather the provision states that arbitration shall be Ain accordance with the [Commercial Rules].” Under this language, the AAA may administer the arbitration, but the parties are not required to have the arbitration administered by the AAA. See TMI, Inc., 225 S.W.3d at 797. Although the party seeking to compel arbitration in TMI, Inc. presented evidence that arbitration under the same arbitration provision was available by a non-AAA arbitrator at a cost significantly lower that the costs of a AAA arbitration, such proof is not necessary for Shasha to be required to make a factual showing that the AAA would administer the arbitration. See Green Tree Fin. Corp., 531 U.S. at 90 n.6, 121 S. Ct. at 522 n.6 (concluding that party asserting substantive unconscionability could not carry her burden of proof based on AAA fees unless she, made a factual showing, among other things, that the AAA would administer the arbitration). As to arbitrator fees, again, Shasha’s projected fees appear to be based on fees charged by AAA arbitrators. In addition, Shasha’s counsel testifies that, under the Commercial Rules, absent agreement by the parties, Shasha must pay half of the arbitrator fees. However, under the Commercial Rules attached to counsel’s affidavit, the arbitration panel in its final award shall apportion the arbitration fees, expenses, and compensation among the parties in such amounts as the panel determines is appropriate. We conclude that the evidence is legally insufficient to support the trial court’s implied finding that Shasha satisfied his burden of providing specific evidence showing a likelihood that he would be denied access to arbitration based on excessive arbitration costs. See Green Tree Fin. Corp., 531 U.S. at 90-92, 121 S. Ct. at 522-23; In re U.S. Home Corp., 236 S.W.3d at 764; In re FirstMerit Bank, N.A., 52 S.W.3d at 756-57; TMI, Inc., 225 S.W.3d at 796. On the record before it, the only finding the trial court could have made was that Shasha did not satisfy this burden. By impliedly ruling to the contrary, the trial court clearly abused its discretion. In addition, even presuming that the AAA would administer the arbitration and that the arbitration costs and fees would be allocated equally by the arbitration panel, Shasha’s counsel projected aggregate costs and fees of $30,325, which would make Shasha’s portion $15,162.50. Presuming that the extra expense of traveling to Boston for the arbitration is $2,700 (the figure stated in the affidavit of Shasha’s counsel) the total financial burden on Shasha would be $17,862.50. However, Shasha is asserting a claim of between $300,000 and $500,000, and Shasha’s base salary, without commissions, when he entered into the 2006 Agreement was $120,000. Though Shasha provided his own affidavit, in which he states that the costs of pursuing his claim through arbitration in Boston under the 2006 Agreement would be extraordinary, oppressive, unaffordable, and would deprive him of the opportunity to litigate his claim, these conclusory statements are legally insufficient. See, e.g., Green Tree Fin. Corp., 531 U.S. at 90 n.6, 121 S. Ct. at 522 n.6 (concluding that party’s unsupported statement that she did not have the resources to pay the high costs of arbitration was insufficient). Shasha does state that he is currently paying for the university studies of his three children and that since he stopped working at Aspen he has been unable to find “equivalent fixed income work.” However, we determine substantive unconscionability based on the circumstances existing when the parties entered into the contract in October 2005, and Shasha provided no evidence as to his finances or ability to pay $17,862.50 at this time.[3] See In re FirstMerit Bank, N.A., 52 S.W.3d at 757. Under the applicable standard of review, we conclude that the trial court clearly abused its discretion by impliedly ruling that the arbitration clause in the 2006 Agreement is substantively unconscionable.[4] IV. Conclusion The Federal Act governs the arbitration clause in the 2006 Agreement. Therefore, this court has mandamus jurisdiction to consider whether the trial court erred in denying Aspen its contracted for arbitration rights under the 2006 Agreement. The trial court clearly abused its discretion (1) by impliedly finding that the arbitration clause in the 2006 Agreement is illusory; (2) by impliedly finding that the clause is substantively unconscionable; and (3) by refusing to order the parties to arbitrate the claims under the 2006 Agreement. Accordingly, we conditionally grant a writ of mandamus directing the trial court to vacate its orders compelling arbitration under the 2001 Agreement and to issue an order (1) compelling arbitration under the 2006 Agreement before a three-arbitrator panel in Boston, Massachusetts, in accordance with the Commercial Rules and (2) staying the proceedings in the trial court pending completion of arbitration. We are confident the respected trial judge will comply with this opinion. Only in the unlikely event she fails to do so will the writ issue. Because we have granted this mandamus relief, we dismiss Aspen’s interlocutory appeal as moot. /s/ Kem Thompson Frost Justice Judgment rendered and Opinion filed March 27, 2008. Panel consists of Chief Justice Hedges and Justices Anderson and Frost. [1] In 1992, addressing whether a party is entitled to mandamus relief for wrongful denial of its arbitration rights under an agreement subject to the Federal Act, the Texas Supreme Court concluded that the Texas Act does not provide such a party the ability to assert an interlocutory appeal. See Jack B. Anglin, Inc. v. Tipps, 842 S.W.2d 266, 272-73 (Tex. 1992). In 2006, the Texas Supreme Court decided that such a party can file an interlocutory appeal of the trial court's denial of a motion to compel arbitration under an agreement governed by the Federal Act. See In re D. Wilson Const. Co., 196 S.W.3d 774, 778-80 (Tex. 2006). It might appear that Aspen is not entitled to mandamus relief in this case because the Federal Act governs the Agreement and, under In re D. Wilson Const. Co., Aspen has an adequate remedy at law by interlocutory appeal. See id. However, the Texas Supreme Court reaffirmed in In re D. Wilson Const. Co. that mandamus relief remains available when a party is erroneously denied its contracted‑for arbitration rights under the Federal Act. See In re D. Wilson Const. Co., 196 S.W.3d at 780-81. Therefore, we conclude that mandamus relief is still potentially available to Aspen. [2] Shasha's counsel attaches a copy of the Commercial Rules and the fee schedule for arbitrations conducted by the AAA, but the AAA fee schedule is not part of the Commercial Rules. [3] In any event, Shasha did not provide specific evidence in his affidavit that would prove his present ability to pay this amount. [4] Shasha relies on In re Luna, 175 S.W.3d 315, 319 (Tex. App.- Houston [1st Dist.] 2004, orig. proceeding [mand. pending]). We are not bound by In re Luna, and, in any event, in that case, there was evidence establishing that arbitration would force the former employee to pay fees that amounted to one-half of his annual compensation. See In re Luna, 175 S.W.3d 315, 321 (Tex. App.- Houston [1st Dist.] 2004, orig. proceeding [mand. pending]). Therefore, In re Luna is not on point.