Trial court's order permitting arbitration-related discovery not reviewable by interlocutory appeal

Texas Court of Appeals in El Paso dismisses attempted appeal from order that postponed ruling on arbitrability pending arbitration-related discovery as unappealable by interlocutory appeal given that the order did not effectively deny arbitration and did not fit any of the categories of arbitration-related orders for which statute authorizes an immediate complaint to the appellate courts by an aggrieved party.  

ReadyOne Industries, Inc. v. Simental (Tex.App.- El Paso, Dec. 21, 2012)

OPINION BY JUSTICE ANTCLIFF

In this non-subscriber negligence case, ReadyOne Industries, Inc. brings an interlocutory appeal from the trial court's order permitting arbitration-related discovery.^[1] Because the trial court did not rule on the merits of ReadyOne's motion to compel arbitration, but rather expressly postponed its ruling on the motion until after the discovery it had ordered was completed, we dismiss the appeal for want of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

Alleging that she sustained an on-the-job injury, Margarita Simental sued ReadyOne for negligence. After filing an answer, ReadyOne moved to compel arbitration pursuant to an agreement requiring claims of on-the-job injuries to be submitted to binding arbitration. In response, Simental moved for limited discovery on the issue of arbitrability to "develop [her] case, and defend against [ReadyOne's] contentions that a valid arbitration agreement exists[,] . . . [and]. . . to develop or inquire into any factual issues that may preclude or discredit the existence of a valid arbitration agreement."

At the hearing on these matters, Simental argued that because her affidavit, attached to the response to ReadyOne's motion to compel arbitration, raised concerns about fraudulent inducement and no meeting of the minds, discovery on the validity of the arbitration agreement was required.[2] Simental also argued that her claims against ReadyOne are not arbitrable because the Franken Amendment[3] prevents federal contractors from enforcing agreements to arbitrate tort claims related to or arising out of negligent hiring, supervision, or retention.[4] After considering the parties' arguments, the trial court ordered limited discovery on the applicability of the Franken Amendment and on Simental's claims of fraudulent inducement and no meeting of the minds. In its order, the trial court made clear that "[it] has not provided a final ruling on Defendant's Motion to Compel Arbitration and will not provide such ruling until . . . the . . . discovery [ordered] should be complete."

JURISDICTION

ReadyOne contends that the trial court's order is reviewable by interlocutory appeal pursuant to Section 51.016 of the Texas Civil Practice and Remedies Code. See TEX.CIV.PRAC.&REM.CODE ANN. § 51.016 (West Supp. 2012). Simental, on the other hand, argues that ReadyOne cannot bring an interlocutory appeal of the trial court's order under Section 51.016 because the trial court did not rule on the merits of ReadyOne's motion to compel arbitration. We agree.

Standard of Review

Appellate courts have jurisdiction over interlocutory orders permitted by statute. See TEX.CIV.PRAC.&REM.CODE ANN. §§ 51.012 and 51.014 (West Supp. 2012). We strictly construe such statutes because interlocutory orders are a narrow exception to the general rule that interlocutory orders are not immediately appealable. CMH Homes v. Perez, 340 S.W.3d 444, 447-48 (Tex. 2011); Nazareth Hall Nursing Ctr. v. Castro, 374 S.W.3d 590, 593 (Tex.App.-El Paso 2012, no pet.); Lucchese, Inc. v. Solano, 08-11-00101-CV, 2012 WL 2409659, *2 (Tex.App.-El Paso 2012, no pet.). The substance and function of the interlocutory order from which an appeal is taken controls our interlocutory jurisdiction. Castro, 374 S.W.3d at 593; Solano, 2012 WL 2409659, at *3; Texas La Fiesta Auto Sales, LLC v. Belk, 349 S.W.3d 872, 878 (Tex.App.-Houston [14th Dist.] 2011, no pet.). When a party attempts to appeal a non-appealable interlocutory order, we have no jurisdiction except to dismiss the appeal. Cantu Servs., Inc. v. United Freedom Assoc., Inc., 329 S.W.3d 58, 63 (Tex.App.-El Paso 2010, no pet.) (quotation marks omitted).

Applicable Law

Section 51.016 of the Texas Civil Practice and Remedies Code provides that in a matter subject to the Federal Arbitration Act (FAA), a party may appeal from an interlocutory order of a district court "under the same circumstances that an appeal from a federal district court's order . . . would be permitted by 9 U.S.C. Section 16." TEX.CIV.PRAC.&REM.CODE ANN. § 51.016 (West Supp. 2012). Section 16 of the FAA identifies the types of orders from which an appeal may be taken. Pursuant to Section 16, an appeal may be taken from:

(1) an order—

(A) refusing a stay of any action under section 3 of this title,

(B) denying a petition under section 4 of this title to order arbitration to proceed,

(C) denying an application under section 206 of this title to compel arbitration,

(D) confirming or denying confirmation of an award or partial award, or

(E) modifying, correcting, or vacating an award;

(2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject to this title; or

(3) a final decision with respect to an arbitration that is subject to this title.

9 U.S.C.A. § 16(a)(West 2009).

Discussion

When strictly construed, Section 51.016 of the Texas Civil Practice and Remedies Code does not permit an interlocutory appeal from a trial court's order deferring ruling on a motion to compel arbitration. As established above, Section 16 of the FAA refers only to orders denying an application to compel arbitration and not to orders postponing a ruling on a motion to compel arbitration. See 9 U.S.C.A. § 16 (no express provision authorizing appeal from trial court's postponement of ruling on a motion to compel arbitration under the FAA). Accordingly, an order deferring a ruling on a motion to compel arbitration is not appealable under Section 16. Because such an order is not appealable under the FAA, it is not an appealable order under Section 51.016. See TEX.CIV.PRAC.&REM.CODE ANN. § 51.016 (in matters subject to the FAA, an appeal is available only under the same circumstances that an appeal from federal district court's order would be permitted). We therefore conclude that the trial court's order permitting arbitration-related discovery is not reviewable by interlocutory appeal.

ReadyOne argues that Section 16 "allow[s] an interlocutory appeal from a district court order that postpones a ruling on a motion to compel arbitration pending further discovery." In support of its argument, ReadyOne points us to several decisions from various intermediate federal appellate courts that stand for the proposition that if the substance of the order effectively denies a motion to compel arbitration, it is an appealable order under Section 16, even if the order does not determine conclusively whether the dispute should be referred to an arbitrator. [5] Although we may rely on decisions from intermediate federal appellate courts as persuasive authority, we are not persuaded by those relied upon by ReadyOne. See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993)(stating that opinions from any federal or state court may be relied on a persuasive authority, but Texas appellate courts are obligated to follow only higher Texas courts and the United States Supreme Court). Here, unlike in the cases on which ReadyOne relies, the substance of the trial court's order did not effectively deny ReadyOne's motion to compel arbitration. Moreover, our sister court considered this identical issue in In re F.C. Holdings, Inc. and held that, "[r]egardless of whether arbitration is sought under the [FAA] or the Texas Arbitration Act, appeal is not available when a trial court defers ruling on a motion to compel arbitration." 349 S.W.3d 811, 815 (Tex.App.-Tyler 2011, orig. proceeding)(citations omitted). We are thus more persuaded by our reasoning and that of our sister court in In re F.C. Holdings, Inc. than by the reasoning of the federal appeals courts in the cases relied upon by ReadyOne.

CONCLUSION

Because the trial court's order permitting arbitration-related discovery and deferring ruling on ReadyOne's motion to compel arbitration is not an appealable order under Section 16 of the FAA, and thus, is not an appealable order under Section 51.016 of the Texas Civil Practice and Remedies Code, we do not have jurisdiction to consider ReadyOne's appeal. Accordingly, we dismiss the appeal for want of jurisdiction.

[1] ReadyOne also filed a companion petition for writ of mandamus seeking to compel the trial court to vacate its order.

[2] Simental's response to ReadyOne's motion to compel arbitration is not in the record. However, there is no doubt that ReadyOne was aware of its existence. At the hearing, counsel for ReadyOne acknowledged receiving Simental's response that day and, despite receiving it then, argued that Simental's affidavit was insufficient to require discovery on the issues of fraudulent inducement and no meeting of the minds. In any event, neither party complains about the absence of the response from the record, and more importantly, the response is unnecessary for the resolution of this appeal.

[3] Section 8116 of the Department of Defense Appropriations Act of 2010 is known as the Franken Amendment because of its author, Senator Al Franken of "Saturday Night Live" fame.

[4] Counsel for Simental informed the trial court that he had briefed this issue in the response to ReadyOne's motion to compel arbitration. As noted above in footnote two, the response is not in the record.

[5] See, e.g., Madol v. Dan Nelson Auto. Grp., 372 F.3d 997, 998-99 (8th Cir. 2004)(concluding that the district court's order that did not determine conclusively whether the dispute should be referred to an arbitrator, but rather rejected the magistrate judge's order compelling arbitration, stayed proceedings, and reopened discovery, was an appealable order under Section 16 because the order refused a stay and directed that the litigation proceed); Boomer v. AT&T Corp., 309 F.3d 404, 411-12 (7th Cir. 2002)(concluding that the district court's order explicitly denying a motion to compel arbitration was immediately appealable under Section 16, notwithstanding the issuance of a subsequent minute order directing the parties to confer and advise it regarding whether a separate trial on arbitrability of the claims was warranted).

No Orders Compelling Arbitration in Rule 202 Proceeding (unless agreed by the parties)

Rule 202 petition does not confer jurisdiction on trial court to enter order compelling arbitration over objection of the other party, Dallas Court of Appeal says in case in which it also awards mandamus relief against the trial court's order permitting Rule 202 discovery (presuit discovery to investigate claim, here female attorney's sex discrimination claim against law firm in which she was partner on equal pay issue).


Patton Boggs, LLP v. Kate Moseley (Tex.App.- Dallas, Dec. 29, 2011)
   
EXCERPT FROM OPINION BY JUSTICE ROBERT M. FILLMORE
  
Appellant Patton Boggs filed this interlocutory appeal challenging the trial court's denial of its motion to compel arbitration. See Tex. Civ. Prac. & Rem. Code Ann. § 51.016 (West Supp. 2011) (appeal or writ of error to the court of appeals from the judgment or interlocutory order of a district court in a matter subject to Federal Arbitration Act); Tex. Civ. Prac. & Rem. Code Ann. § 171.098(a)(1) (West 2011) (party may appeal an order denying an pplication to compel arbitration under section 171.021); see Tex. Civ. Prac. & Rem. Code Ann. § 171.021(a) (West 2011) (court shall order parties to arbitration on application of a party showing an agreement to arbitrate and the opposing party's refusal to arbitrate). See Footnote 7 In its sole issue on appeal, Patton Boggs contends the trial court erred by denying Patton Boggs's motion to compel arbitration and to stay the rule 202 proceedings.
  
Moseley responds that the trial court lacked jurisdiction over Patton Boggs's motion to compel arbitration filed in the rule 202 proceeding. We agree. Because the only proceeding before the trial court was a rule 202 petition, the trial court had no jurisdiction to grant a motion to compel arbitration absent an agreement between the parties that the motion should be granted. See In re Southwest Sec., Inc., No. 05-99-01836-CV, 2000 WL 770117, at *2 (Tex. App.-Dallas, June 14, 2000, orig. proceeding.) (not designated for publication). The trial court lacked jurisdiction to compel arbitration in the rule 202 proceeding. Accordingly, we dismiss this interlocutory appeal for lack of jurisdiction. Tex. R. App. P. 42.3(a).
 
Conclusion
  
We conditionally grant the petition for writ of mandamus and order the trial court to vacate the portions of its August 15, 2011 order that grant Moseley's rule 202 request to take depositions and that grant in part Moseley's request for production of documents. A writ will issue only in the event the trial court fails to vacate the portions of its August 15, 2011 order that grant Moseley's rule 202 request to take depositions and that grant in part Moseley's request for production of documents in conjunction with those depositions.
We dismiss this interlocutory appeal for lack of jurisdiction.

SOURCE: DALLAS COURT OF APPEALS - 05-11-01097-CV  - 12/29/11

Supreme Court Clarifies Recent Ruling on Pre-Arbitration Discovery

CAN ANY DISCOVERY BY DONE BEFORE ARBITRATION? Recent Holding Disapproving of Pre-Arbitration Discovery "Reiterated" Perhaps as a noble gesture to a former colleague (Craig Enoch), who is listed as one of eleven (11) attorneys for the real party in interest (O'Connor & Hewitt, Ltd.), the Texas Supreme Court last Friday issued a brief supplemental opinion on motion for re-hearing clarifying that all discovery is not necessarily precluded when a motion to compel arbitration is filed and pending. For undivinable reasons, the original mandamus opinion in IN RE HOUSTON PIPE LINE COMPANY, ET AL (Tex. 2009) is not even cited in the one-page follow-up opinion. See prior post: Pre-Arbitration Discovery Quashed by Texas High Court =============================== In re Houston Pipe Line Company, et al. =============================== Connor complains on rehearing that our opinion may be misinterpreted to foreclose all pre-arbitration discovery in the underlying case because we have vacated the underlying discovery order and directed the trial court to rule on the pending motion to compel arbitration. O'Connor submits that such an interpretation would conflict with the Court's recognition here that pre-arbitration discovery is permissible when a trial court needs additional information to make its determination regarding the scope of the arbitration provision or other issues of arbitrability. We reiterate that the discovery order below was overbroad and must be vacated, but that the trial court retains discretion to order limited discovery on issues of scope or arbitrability, if necessary. We further reiterate that motions to compel arbitration and any reasonable discovery should be resolved without delay. O'Connor's motion for rehearing is overruled. OPINION DELIVERED: October 23, 2009. REPRESENTATIVES FOR THIS PARTY: O'Connor & Hewitt, Ltd.

	Attorneys
	Mr. Thomas J. Sims
	Mr. Timothy S. Perkins
	Mr. James W. Cole
	Mr. William F. Seerden
	Mr. Ronald B. Walker
	Mr. Gilberto Hinojosa
	Mr. Craig T. Enoch
	Ms. Melissa Prentice Lorber
	Mr. Neel Alan Choudhury
	Mr. Stanley B. Binion
	Mr. Alex S. Valdes

LINKS FOR ORIGINAL OPINION ON PETITION FOR WRIT OF MANDAMUS AND RELATED CASE INFORMATION FOR In Re Houston Pipe Line Co., L.P. (Tex. 2009), No. 08-0800 (Tex. Jul. 3, 2009) (per curiam) (arbitration mandamus) (trial court ordered to rule on motion to compel arbitration, and to vacate pre-arbitration discovery orders determined by the supreme court to be overbroad) THE GIST: At issue in this proceeding is whether the trial court abused its discretion by permitting discovery on damage calculations and other potential defendants, instead of deciding the motion to compel arbitration. For the reasons below, we conclude the trial court should not have ordered pre-arbitration discovery, but rather should have decided the motion to compel arbitration. ... [W]e conditionally grant the writ and direct the trial court to vacate the discovery order and to rule on the motion to compel arbitration. IN RE HOUSTON PIPE LINE COMPANY, L.P., ET AL.; from Victoria County; 13th district (13-07-00299-CV & 13-07-00362-CV, [interlocutory appeal and mandamus petition] 269 SW3d 90, 08-26-08 Opinion of the Thirteenth Court of Appeals by Chief Justice Rogelio Valdez denying mandamus relief) stay order issued October 17, 2008, lifted Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Texas Supreme Court conditionally grants the petition for writ of mandamus. Get this Per Curiam Opinion [4 pages in pdf] E-Briefs in IN RE HOUSTON PIPE LINE CO., LP d/b/a HOUSTON PIPE LINE CO.

How Much Discovery is Too Much, Resulting in Waiver?

WHAT AMOUNT OF PRE-ARBITRATION DISCOVERY ENTAILS WAIVER OF THE RIGHT TO ENFORCE ARBITRATION AGREEMENT? In a recent mandamus proceeding the El Paso Court of Appeals did not answer that question directly, but pointed to the fact that a motion to compel arbitration had been filed and denied prior to the discovery being served. Invoking the Supreme Court's "totality of the circumstances" mantra, the Court finds that the right to arbitrate was not waived, and compels arbitration. Nobody knows what the totality of the circumstances means, other than providing for the consideration of "everything" as opposed to a defined list of factors, but it seems safe to conclude that objecting to litigation -- and moving for arbitration -- as soon as possible, and getting an adverse ruling prior to sending out discovery requests and noticing depositions, is the prudent thing to do in order to minimize the possibility of a waiver finding. In Re ReadyOne Industries, Inc. and Amalia Lopez (Tex.App.- El Paso, Aug. 8, 2009) In granting the mandamus petition in this case, opinion author Chief Justice David Wellington Chew goes the extra mile to be polite to trial judge, merely "requesting" the trial court to vacate the order denying arbitration. Others are typically are more blunt and "direct" the trial judge to comply upon a finding of abuse of discretion. As a matter of professional courtesy, courts of appeals typically do not actually issue mandamus writs in Texas, but afford the judge below an opportunity to comply before one is prepared. They typically do, thus mooting the writ. The waiver section of the opinion, which also contains other holdings of jurisprudential interest, including an analysis of the novel issue of how a corporate reorganization & name change affects an existing arb agreement, follows below: WAIVER A party waives the right to arbitrate by substantially invoking the judicial process to the other party's detriment or prejudice. In re Fleetwood Homes of Tex., L.P., 257 S.W.3d 692, 694 (Tex. 2008) (orig. proceeding). 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." See id. (quoting Perry Homes v. Cull, 258 S.W.3d 580, 597 (Tex. 2008)). Waiver must be decided on a case-by-case basis, and courts should look to the totality of the circumstances involved. We consider factors such as when the movant knew of the arbitration clause, how much discovery has been conducted, who initiated it, whether it related to the merits rather than arbitrability or standing, how much of it would be useful in arbitration, and whether the movant sought judgment on the merits. Perry Homes, 258 S.W.3d at 591-92.

The Real Party in Interest argues that the litigation process has been substantially invoked, because both sides have completed extensive discovery, which goes to the merits of the case. The Relators made a request for disclosure, eight interrogatories, fifteen requests for production, and conducted two depositions. The request for disclosure, eight interrogatories, and fifteen requests for production were made on March 14, and 18, 2008. Relators filed their motion to compel arbitration on October 1, 2007, but the trial court did not rule on the motion until March 10, 2008. On April 30, 2008, Relators filed a motion to reconsider compelling arbitration, which was denied.

The discovery was conducted after the motion to compel arbitration was denied. We do not find that this conduct acts as a waiver. From the beginning of this litigation the Relators have attempted to invoke the arbitration agreement. In their first pleading, the Relators expressed that the arbitration agreement precludes state court litigation. Relators have not filed any affirmative claims for relief nor sought any judgments on the merits. They proffered two witnesses for deposition explicitly stating that the deposition was subject to an upcoming motion to reconsider the denial of the motion to compel arbitration. However, there is no record of the content of those depositions. The Real Party argues that all medical records have been exchanged, but this is not represented in the Relators' Record. The only medical document in the record is an Accident Investigation Report, which indicates that the Real Party is experiencing pain in her left shoulder. Critical to this type of litigation would be the diagnoses of her condition by a medical doctor and some testimony that her condition could be caused by her workplace duties.

Based on the totality of the circumstances, the discovery conducted in this case does not amount to substantially invoking the litigation process. The Texas Supreme Court has found that eighteen interrogatories and one set of nineteen requests for production did not waive the right to compel arbitration. In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex. 1998). The Texas Supreme Court has also found that taking four depositions does not waive the right to arbitrate. In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 763 (Tex. 2006). In Vesta Ins. Group, the Court found "the record does not show whether these requests were limited or extensive, whether they sought information for affirmative claims or defensive ones, or even whether they addressed the merits or merely the arbitration issue." Id. The same is true in this case. The content of the depositions is not available for this Court to review, nor was it available for the trial court to review in the Real Party in Interest's response in opposition to Defendant's motion to reconsider compelling arbitration. Most importantly, the Relators did not try to hide their desire to arbitrate this claim. In fact they tried twice to compel arbitration, once before any discovery had been completed.

Crucial to the Perry outcome was the fact that the party seeking to arbitrate waited until fourteen months after the case was filed to assert the right to do so.

14 months after filing suit and shortly before the December 2001 trial setting, the Culls changed their minds and requested arbitration. They justified their change of heart on the basis that they wanted to avoid the delays of an appeal. But their change unquestionably delayed adjudication of the merits; instead of a trial beginning in a few days or weeks, the plenary arbitration hearing did not begin until late September of 2002-almost ten months after the Culls abandoned their trial setting. Moreover, to the extent arbitration reduces delay, it does so by severely limiting both pretrial discovery and post-trial review. Having enjoyed the benefits of extensive discovery for 14 months, the Culls could not decide only then that they were in a hurry.

Perry Homes, 258 S.W.3d at 596-97. The court was clear to point out that while they found that the Culls had substantially invoked the judicial process that was only one part of a totality of the circumstances review. Id. at 596.

Thus, we should also look at the conduct of the parties. Id. In this case it is clear that the Relators desired to arbitrate the claim pursuant to an enforceable arbitration agreement from the early stages of the litigation. If the Supreme Court in Perry could have hung its hat solely on the amount of discovery that had been completed, it would not have continued to review how the Culls originally objected to arbitration, and then fourteen months later argued they were entitled to arbitrate.

We resolve any doubts that we have regarding waiver in favor of arbitration. Nw. Constr. Co. v. Oak Partners, L.P., 248 S.W.3d 837, 847 (Tex.App.-Fort Worth 2008, pet. denied). Considering the above in addition to the totality of the circumstances, we disagree that Relators waived their right to compel arbitration, because they have not substantially invoked the judicial process.

We also find that the Real Party has not shown that she will be prejudiced by arbitration. Fleetwood Homes of Tex., L.P., 257 S.W.3d at 694. Contrary to the assertions of the Real Party, the litigation process will not have to start over if the parties arbitrate this case. There is no evidence that the discovery already obtained could not be used at arbitration. Absent a showing that some evidence discovered would not be attainable in arbitration, no prejudice has occurred. In re Bruce Terminix Co., 988 S.W.2d at 704.

LINKS TO FULL TEXT OF OPINION AND CASE DETAILS:

In Re ReadyOne Industries, Inc, [opinion in pdf on court's website] No. 08-08-00221-CV (Tex.App.- El Paso, Aug. 19, 2009) (arbitration mandamus granted, arbitration of workplace injury claim, no waiver of right to arbitrate) MOTION OR WRIT GRANTED: Opinion by Chief Justice Chew Before Chief Justice Chew, Justice McClure, The Honorable Gomez 08-08-00221-CV In Re: ReadyOne Industries, Inc. and Amalia Lopez [opinion in html] RELATED SEARCH TERMS: Discovery in civil litigation and arbitration | pre-arbitration discovery | timeliness of motion to compel arbitration | substantial invocation of the litigation process | waiver of contractual right to arbitrate, enforce arbitration clause| Perry Homes v. Cull progeny| arbitration in the employment context | arbitration of workplace personal injury claims|

Pre-Arbitration Discovery Quashed by Texas High Court: In Re Houston Pipe Line Co., LP (Tex. 2009)

10/22 UPDATE: Supreme Court Issues Supplemental Opinion on Pre-Arbitration Discovery Finding abuse of discretion, Texas Supreme Court orders trial court judge to vacate preliminary order governing discovery in commercial dispute and rule on pending motion to compel arbitration instead. Corpus Christi Court of Appeals had found temporary orders appropriate prior to deciding whether the parties should be sent to arbitration under the circumstances of the case. In Re Houston Pipe Line Co., L.P. (Tex. July 3, 2009), No. 08-0800 (Tex. Jul. 3, 2009) (per curiam) (mandamus granted: trial judge directed to rule on motion to compel arbitration, and to vacate pre-arbitration discovery orders found to be overbroad). FROM THE PER CURIAM OPINION: At issue in this proceeding is whether the trial court abused its discretion by permitting discovery on damage calculations and other potential defendants, instead of deciding the motion to compel arbitration. For the reasons below, we conclude the trial court should not have ordered pre-arbitration discovery, but rather should have decided the motion to compel arbitration. Houston Pipe Line Company, L.P., signed an agreement to purchase gas from O’Connor & Hewitt, Ltd., based on the Houston Ship Channel Price Index. Several years later, O’Connor sued Houston Pipe Line, Energy Transfer Partners, L.P., Energy Transfer Equity, L.P., and La Grange Acquisition, L.P., for manipulating the Index downward, which caused O’Connor to receive lower payments for gas delivered pursuant to the contract. As a signatory to the contract, Houston Pipe Line sought to enforce the arbitration provision. Energy Transfer and La Grange were not parties to the agreement, but tried to compel arbitration based on a direct benefits equitable estoppel theory. See Meyer v. WMCO-GP, LLC, 211 S.W.3d 302, 305 (Tex. 2006); Sherer v. Green Tree Servicing LLC, 548 F.3d 379, 382 (5th Cir. 2008). O’Connor resisted arbitration by attacking the scope of the arbitration provision and contending that it would be impossible to identify all potential defendants and to complete damages calculations within the sixty days allotted for discovery, as set out in the arbitration provision. Rather than rule on the motion to compel, the trial court ordered discovery to aid it in deciding the motion. Specifically, the trial court ordered discovery to determine if additional defendants could equitably invoke the arbitration clause, whether O’Connor’s claims fell within the scope of the arbitration clause, and if the time limitations imposed by the clause were jurisdictional. In its order, the trial court suggested that it would be virtually impossible to conduct the necessary discovery within the sixty-day time frame allotted to the arbitrator under the agreement * * * Houston Pipe Line and Energy Transfer sought mandamus relief in the court of appeals, arguing that the trial court had abused its discretion by not ruling on the motion to compel. The court of appeals refused to issue the writ, concluding that the trial court had acted within its discretion. We disagree that the discovery ordered by the trial court was needed for it to rule on the motion to compel. When a party disputes the scope of an arbitration provision or raises a defense to the provision, the trial court, not the arbitrator, must decide the issues. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444 (2006). And “[w]hen Texas courts are called on to decide if disputed claims fall within the scope of an arbitration clause under the Federal Act, Texas procedure controls that determination.” Tipps, 842 S.W.2d at 268. Pre-arbitration discovery is expressly authorized under the Texas Arbitration Act when a trial court cannot fairly and properly make its decision on the motion to compel because it lacks sufficient information regarding the scope of an arbitration provision or other issues of arbitrability. See Tex. Civ. Prac. & Rem. Code §§ 171.023(b), 171.086(a)(4),(6). This, however, is not an authorization to order discovery as to the merits of the underlying controversy. Motions to compel arbitration and any reasonably needed discovery should be resolved without delay. Tipps, 842 S.W.2d at 269. The discovery authorized by the trial court seeks to determine the identity of all potential defendants and to what extent each defendant is liable, including Houston Pipe Line. Such an inquiry is inappropriate because determinations of ultimate liability ordinarily must be answered during the arbitration proceeding, while questions regarding the scope of the arbitration clause should be decided by the trial court. See AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649 (1986). The necessity of identifying other culpable parties could, under some circumstances, be related to arbitrability. But, a party cannot avoid its agreement to arbitrate merely by alleging that there may be other potential defendants; it must link the identity of the defendants to an issue of arbitrability, such as scope, or a defense to arbitration. See 9 U.S.C. § 4; Tex. Civ. Prac. & Rem. Code §§ 171.021, 171.026; see also J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). Because the discovery ordered here is overbroad and beyond the issues raised in the motion to compel, we conclude that the trial court abused its discretion by ordering this discovery rather than ruling on the legal issues raised by the motion to compel. Accordingly, without hearing oral argument, we conditionally grant the writ and direct the trial court to vacate the discovery order and to rule on the motion to compel arbitration. FROM THE CONTRARY OPINION OF THE APPEALS COURT BELOW: The trial court cannot delay ruling on a motion to compel arbitration until discovery has been completed because this would defy the purpose of arbitration and the application of a summary procedure. See e.g., In re Great W. Drilling, Ltd., 211 S.W.3d at 835. However, there is no rule mandating a strict deadline for the court to rule on a motion to compel arbitration. Moreover, as discussed previously, it is clear that the trial court can allow discovery in some circumstances pending its ruling on a motion to compel arbitration. The Texas Supreme Court in Anglin specifically stated that the trial court may "summarily decide whether to compel arbitration on the basis of affidavits, pleadings, discovery, and stipulations." See Anglin, 842 S.W.2d at 269 (emphasis added). Moreover, an evidentiary hearing is required if there are disputed material facts. See id. Furthermore, the Texas Act allows the court to issue, "in its discretion an order for a deposition for discovery, perpetuation of testimony, or evidence needed before the arbitration proceedings begin," or to grant "other relief . . . in its discretion, needed to permit the arbitration to be conducted in an orderly manner and to prevent improper interference or delay of the Arbitration." Tex. Civ. Prac. & Rem. Code Ann. § 171.086(4), (6); see Universal Computer Sys., 183 S.W.3d at 750 (contrasting trial court's authority to resolve an existing discovery dispute with authority to facilitate an arbitration). Under the present circumstances, the trial court did not abuse its discretion in allowing the instant discovery before ruling on Houston Pipe Line's motion to compel arbitration and request to stay trial court proceedings. The trial court is not deferring its ruling until the completion of discovery, but rather, in its discretion, is allowing circumscribed discovery needed to determine the merits of the motion to compel arbitration and if necessary, to permit the arbitration to be conducted in an orderly manner and to prevent improper interference or delay of the arbitration. We note that, in considering the issues herein, we do not reach the merits of the motion to compel arbitration or the arbitrability of the instant dispute. The trial court has not ruled on the merits of this matter and has expressly deferred its ruling pending the continuation of the hearing. Therefore, the merits of the arbitration motion and any contest to it are not ripe for our consideration. In re The Shredder Co., 225 S.W.3d 676, 680 f.5 (Tex. App.-El Paso 2006, orig. proceeding); In re MHI P'ship, Ltd., 7 S.W.3d at 921 f.6; Hou-Scape, Inc. v. Lloyd, 945 S.W.2d 202, 205 (Tex. App.-Houston [1st Dist.] 1997, orig. proceeding); see In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999). Whether the motion to compel arbitration should be granted or denied is a matter that remains within the trial court's discretion. (6) We note that mandamus may issue if a court does not issue a ruling on a motion to compel arbitration within a reasonable period of time. See In re The Shredder Co., 225 S.W.3d at 680; see also In re Landmark Org., L.P., No. 13-04-00527-CV, 2004 Tex. App. LEXIS 9754, at *3-4 (Tex. App.-Corpus Christi Nov. 1, 2004, orig. proceeding) (per curiam) (mem. op). However, such is not the case presently before this Court. 269 SW3d 90, (Aug. 26, 2008 opinion of the Thirteenth Court of Appeals by Chief Justice Rogelio Valdez denying mandamus relief) RELATED TERMS AND CONCEPTS: Arbitration mandamus, arbitration and discovery, motion to compel arbitration, issues for and role of the court vs. role of and questions to be decided by the arbitrator, scope of the arbitration agreement, prearbitration discovery, direct benefits equitable estoppel, application of federal FAA in state court, interaction of FAA with Texas procedural law and TAA