Opinion
No. 09-06-249 CV
Submitted on July 14, 2006.
Opinion Delivered July 27, 2006.
Original Proceeding.
Writ Denied.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
In her petition for writ of mandamus, Amy Ivins seeks to compel the trial court to set aside an order granting a "Motion to Stay Litigation Pending Arbitration" filed by Level Check Foundation Repair Beaumont, L.P. We deny mandamus relief.
A foundation repair contract between Level Check and co-defendants Sean Harkins and Michelle Harkins includes an arbitration agreement. After purchasing a home from the Harkins, Ivins sued the Harkins for breach of contract, breach of warranty, and deceptive trade practices. Ivins also sued Level Check for breach of implied warranty, deceptive trade practices, and negligence in connection with foundation repair performed by Level Check on the house Ivins purchased from the Harkins.
Ivins contends her claims against Level Check are not based upon the contract containing the arbitration agreement. "[N]onparties may be bound to an arbitration clause when the rules of law or equity would bind them to the contract generally." In re Weekley Homes, L.P., 180 S.W.3d 127, 129 (Tex. 2005). Ivins's standing to complain about the implied warranty in the work performed by Level Check depends upon her status as a third-party beneficiary to the contract between the Harkins and Level Check.
Ivins contends the arbitration agreement is limited to breach of contract claims. The contract states that "in the event of any allegation that Level Check has breached this contract . . . any such allegations shall be exclusively resolved by binding arbitration . . . and that no law suit shall be filed against Level Check in any court of Law." By alleging that Level Check failed to properly repair the foundation, Ivins described a breach of the contract within the scope of the arbitration agreement.
A party seeking mandamus relief from an order staying a case for arbitration must meet a "`particularly heavy'" burden to show "`clearly and indisputably that the district court did not have the discretion to stay the proceedings pending arbitration.'" In re Palacios, No. 05-0038, 2006 WL 1791683, at *2 (Tex. June 30, 2006) (quoting Apache Bohai Corp., LDC v. Texaco China, B.V., 330 F.3d 307, 310-11 (5th Cir. 2003)). This case does not present a clear and indisputable abuse of discretion. Accordingly, we deny mandamus relief.