in Re: Dennis Williams and Patty Williams, Relators

• Court: Court of Appeals of Texas
• Decided: December 30, 2003
• Docket: 07-03-00499-CV
• Status: Published

Opinion

NO. 07-03-0499-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 30, 2003

______________________________

IN RE DENNIS WILLIAMS AND PATTY WILLIAMS, RELATORS

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Relators Dennis and Patty Williams seek mandamus relief from an order of the district court abating and requiring arbitration of the underlying action, Cause No. 53,219-B, 181st District Court of Randall County. The underlying action was initiated by real party in interest Steamatic of Amarillo, Inc., as a suit on sworn account against the Williams. After the Williams answered and asserted counterclaims under the Deceptive Trade Practices Act and for breach of contract, Steamatic asserted that the parties' disputes were subject to arbitration under the terms of a written agreement signed by the Williams, and asked the trial court to compel arbitration. The trial court did so following a hearing, entering the order that is the subject of the Williams' petition in this court. We will deny the petition. ⁽¹⁾

The trial court made no determination whether the federal ⁽²⁾ or Texas ⁽³⁾ arbitration statute governs the written agreement between the parties. Relators' mandamus petition and Steamatic's response both suggest the federal act applies. Neither the Texas nor federal arbitration statute permits interlocutory appeal from a trial court decision compelling arbitration; the Williams may seek relief, then, if at all, ⁽⁴⁾ only through mandamus.

One seeking issuance of a writ of mandamus must provide a sufficient record to establish the right to such relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). The Fifth Circuit has held that the burden on a party seeking mandamus relief from an order compelling arbitration is particularly heavy. Apache Bohai Corp., LDC v. Texaco China, B.V., 330 F.3d 307, 310 (5^th Cir. 2003).

The parties do not dispute that a valid arbitration agreement exists between Steamatic and the Williams, nor that the claims asserted by each fall within the scope of the agreement. The Williams contend, though, that Steamatic waived its right to require arbitration by initiating the underlying action through its suit on sworn account.

A party to an arbitration agreement may waive its right to insist on arbitration as the means to resolve a dispute if it intentionally chooses to pursue its remedies through the judicial process. See, e.g., In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex. 1998). The public policy favoring arbitration brings about a strong presumption against such a waiver, however, and the case law requires a showing that the party against whom waiver is asserted has substantially invoked the judicial process, and that the opposing party has suffered prejudice as a result. Id.; EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 89 (Tex. 1996); see Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 326 (5^th Cir. 1999). Any doubt that waiver has occurred must be resolved in favor of arbitration. Bruce Terminix, 988 S.W.2d at 705.

Steamatic does not deny that it invoked the judicial process by initiating the litigation, but contends that the Williams have demonstrated no prejudice. The Williams concede that the requirement of showing prejudice normally applies, but say that the requirement does not apply when the party seeking arbitration is the plaintiff. Filing suit on an arbitrable claim, contend the Williams, waives the right to arbitration as a matter of law. For several reasons, we cannot agree with this broad contention. It finds no support in the language of the arbitration statute. Section 3 of the federal statute provides for the stay of litigation pending arbitration on the application of "one of the parties." ⁽⁵⁾ Secondly, relators' contention runs counter to the policy favoring arbitration that is reflected in the federal statute. See, e.g., Bruce Terminix, 988 S.W.2d at 704. Thirdly, we find no case drawing the distinction relators urge, and we see no reason in logic why a party's initial invocation of the judicial process as plaintiff should relieve its opponent of the burden the law otherwise imposes to demonstrate prejudice. ⁽⁶⁾ This is particularly so, where, as here, the defendant asserts counterclaims that significantly change the nature of the litigation from the suit on sworn account initially filed by the plaintiff. ⁽⁷⁾

Relators rely on Bruce Terminix, 988 S.W.2d 702. That opinion cannot be said to support the proposition that a plaintiff is barred as a matter of law from seeking an order compelling arbitration following the filing of counterclaims by the defendant and without a demonstration of prejudice.

Relators' petition in this court does not argue that they have been prejudiced as a result of Steamatic's initially filing suit. The record before us does not demonstrate prejudice of the type the case law requires to support a finding of waiver of the right to arbitrate. See Subway, 169 F.3d at 327; Miller Brewing, 781 F.2d at 497-98; Home Club, Inc. v. Barlow, 818 S.W.2d 192, 193 (Tex.App.-San Antonio 1991, no writ). The litigation was in its early stages when the trial court abated it and ordered arbitration. ⁽⁸⁾ Doing so was not an abuse of the trial court's discretion. Relators' petition for a writ of mandamus is denied.

James T. Campbell

Justice

1. Relators' petition requested oral argument. We decide the case without oral argument, finding that argument would not significantly aid the court in determining the issues presented. Tex. R. App. P. 39.8.

2. 9 U.S.C.A. §§ 1-16 (1999 & Supp. 2003).

3. Tex. Civ. Prac. & Rem. Code Ann. §§ 171.001-171.098 (Vernon Supp. 2004).

4. The parties do not raise the question whether the availability of court action following arbitration (and thus an adequate remedy by law) renders an order compelling arbitration, as opposed to one refusing to compel arbitration, not reviewable by mandamus. As noted, both the Texas and federal arbitration statutes provide for review by interlocutory appeal of trial court decisions denying arbitration, but not of decisions ordering arbitration. Tex. Civ. Prac. & Rem. Code § 171.098; 9 U.S.C.A. § 16; see, e.g., Lipshy Motorcars, Inc. v. Sovereign Assocs., Inc., 944 S.W.2d 68, 69 (Tex.App.-Dallas 1997, no writ). Although it appears that the Fifth Circuit will, in a proper case, permit mandamus to correct erroneous decisions ordering arbitration under the federal statute, see Apache Bohai Corp., LDC v. Texaco China, B.V., 330 F.3d 307, 310-11 (5^th Cir. 2003), at least one Texas court of appeals has pointed to the availability of appeal following arbitration in denying mandamus relief. McMullen v. Yates, 697 S.W.2d 500, 502-03 (Tex.App.-San Antonio 1985, no writ); but see Freis v. Canales, 877 S.W.2d 283 (Tex. 1994).

5. 9 U.S.C.A. § 3.

6. The third case relators cite, Miller Brewing Co. v. Fort Worth Distributing Co., 781 F.2d 494 (5^th Cir. 1986), does not support relators' contention. There, the court did find that Fort Worth Distributing had waived its right to arbitrate through litigation it had filed as plaintiff, but the court made specific findings concerning prejudice to Miller Brewing caused by its opponent's invocation of the judicial process.

7. In this regard, note the holding of the Fifth Circuit in Subway, a case on which relators rely, that "a party only invokes the judicial process to the extent it litigates a specific claim it subsequently seeks to arbitrate." 169 F.3d at 328. It seems difficult to argue that Steamatic's motion to compel arbitration following the filing of the Williams' counterclaims amounts to an effort to arbitrate the "specific claim" on which it initiated its suit on sworn account.

8. The appendix to relators' mandamus petition indicates the following: Steamatic filed its suit on sworn account on July 15, 2003; it obtained an order for substitute service on the Williams on August 7, 2003; the Williams answered and counterclaimed on or about August 26, 2003; Steamatic initiated no discovery; the Williams sent discovery requests to Steamatic with responses due initially on September 25, 2003; Steamatic first initiated efforts in the trial court to compel arbitration some time before October 1, 2003; the trial court's order to arbitrate is dated November 7, 2003.

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NO. 07-11-00118-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 13, 2011

IN RE ROLAND BOSWELL, RELATOR

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Relator, Roland Boswell, has filed a “Writ of Mandamus” requesting this Court to order the 320^th District Court of Potter County, Texas, to dismiss with prejudice a pending criminal indictment in cause number 54,144-D due to the State’s alleged failure to timely prosecute.  We deny the petition.

Texas Rule of Appellate Procedure 52.3^[1] identifies the requirements for a petition for writ of mandamus^[2] filed in this Court.  Boswell has failed to comply with these requirements.  Rule 52.3(a) requires that a petition must include a complete list of all parties and the names and addresses of all counsel.  Boswell does not identify any of the parties against whom he seeks mandamus relief.  In fact, the only identification of the respondent comes from an identification of the trial court and the cause number on motions appended to the petition for writ of mandamus.  Rule 52.3(b) requires that the petition include a table of contents with references to the pages of the petition and an indication of the subject matter of each issue or point raised in the petition.  Boswell’s petition includes no table of contents.  Rule 52.3(c) requires that a petition include an index of authorities in which all authorities cited in the petition are arranged alphabetically and the page(s) upon which the authorities are cited is indicated.  Boswell=s petition includes no index of authorities.^[3]  Rule 52.3(d) requires a statement of the case that includes a concise description of the nature of the underlying proceeding.  Boswell=s petition does not contain a statement of the case, and does not include a concise description of the nature of the underlying proceeding.  Rule 52.3(e) requires the petition include a statement regarding the basis of this Court’s jurisdiction.  Boswell’s petition does not include a statement regarding the basis of this Court’s jurisdiction.  Rule 52.3(f) requires the petition include a concise statement of all issues or points presented for relief.  Boswell’s petition includes no such statement.  Rule 52.3(g) requires the petition include a statement of facts supported by citation to competent evidence included in the appendix or record.  Boswell’s petition essentially includes little more than a statement of facts.  Rule 52.3(h) requires a clear and concise argument for the contentions made, with appropriate citations to authorities.  Boswell’s petition includes no citations to legal authority of any kind, and certainly does not identify legal authority authorizing the extraordinary relief sought by Boswell.  Rule 52.3(j) requires the person filing the petition to certify that he has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.  Boswell did not certify his petition.  As each of these items are required in a petition for writ of mandamus and Boswell has failed to comply with these requirements, we may not grant the relief that he requests.  Additionally, Texas Rule of Appellate Procedure 9.5 requires that, at or before the time that a document is filed with this Court, a copy of the document must be served on all parties to the proceeding.  Boswell’s petition does not include a certification that a copy of the petition was served on the respondent or any other party to this original proceeding.^[4]

As Boswell=s petition for writ of mandamus does not comply with the requisites for mandamus relief, we must deny the petition.

                                                                                                Mackey K. Hancock

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^[1] Further citation of Texas Rules of Appellate Procedure will be by reference to ARule __.@

^[2] While Boswell’s filing is denominated to be a writ of mandamus, we construe it to be a petition requesting this Court to issue a writ of mandamus.

^[3] However, we note that Boswell’s petition cites no authority, so there is no authority to include in an index of authorities.

^[4] As Boswell failed to include a complete list of all parties and the names and addresses of all counsel in his petition, we are uncertain who the proper parties to this original proceeding might be.