Fulton Performance Products v. Penske Truck Leasing Company

• Court: Court of Appeals of Texas
• Decided: April 25, 2002
• Docket: 01-01-00458-CV
• Status: Published

Opinion

Opinion issued April 25, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00458-CV

____________

FULTON PERFORMANCE PRODUCTS, INC., Appellant

V.

PENSKE TRUCK LEASING CO., L.L.P., Appellee

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 2001-00468

O P I N I O N

In this accelerated case, appellant, Fulton Performance Products, Inc., challenges the trial court's April 5, 2001 order denying, in part, Fulton's motion to compel arbitration between Fulton and appellee, Penske Truck Leasing Company, L.L.P. Penske has filed a motion to dismiss this appeal for want of jurisdiction.

The arbitration clause at issue is contained within a February 21, 1997 settlement agreement reached between the parties. It is uncontested that paragraph seven of the settlement agreement specifies that "[a]ll disputes, controversies or differences which may arise between the parties, out of, in relation to or in connection with this Agreement or for the breach thereof, which cannot be settled by the parties themselves, shall be settled by final and binding arbitration," and that "the Federal Arbitration Act shall govern the interpretation and enforcement of this paragraph 7." In its motion to compel arbitration, Fulton sought to enforce this provision of the parties' settlement agreement. Therefore, assuming Fulton's claims fall within the scope of the parties' arbitration agreement, as Fulton alleges, the Federal Arbitration Act clearly applies.

Mandamus, not interlocutory appeal, is the proper means for reviewing an order denying arbitration under the Federal Arbitration Act. Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 945 (Tex. 1996) (original proceeding); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (original proceeding). Thus, we have no jurisdiction to consider this interlocutory appeal and we must dismiss it for want of jurisdiction. See Belmont Constructors, Inc. v. Lyondell Petrochemical Co., 896 S.W.2d 352, 356 (Tex. App.--Houston [1st Dist.] 1995, no writ).

Conclusion

We grant Penske's motion and dismiss Fulton's interlocutory appeal of the trial court's April 5, 2001 order. ⁽¹⁾

Terry Jennings

Justice

Panel consists of Justices Mirabal, Hedges, and Jennings.

Do not publish. Tex. R. App. P. 47.

1.

In a parallel proceeding, Fulton has also filed a petition for writ of mandamus challenging the trial court's April 5, 2001 order. We address the merits of Fulton's claims in that proceeding. In re Fulton Performance Prods., Inc., 01-01-00606-CV (Tex. App.--Houston [1st Dist.] April 25, 2002, no pet. h.).