Summary
In Neatherlin Homes, we dismissed a mandamus proceeding, not because Neatherlin Homes did not invoke the FAA, but because Neatherlin Homes had sought relief from the trial court only under the TAA. Because Neatherlin Homes had only sought relief under the TAA, its avenue of relief for the trial court's failure to grant arbitration under the TAA was by way of direct appeal, not mandamus. Neatherlin Homes at 83.
Summary of this case from In re Olshan FoundationOpinion
No. 10-03-391-CV.
February 11, 2004.
Theodore J. Riney, Catherine C. Kays, Geary, Porter Donovan, P.C., Dallas, for relator.
Timothy C. Anderson, Austin, for interested party.
Before Chief Justice GRAY, Justice BILL VANCE, and Justice REYNA.
OPINION
Claude Nealy sued Neatherlin Homes over defects in a home he purchased. The retail installment contract contained an arbitration provision. Neatherlin Homes moved to compel arbitration "under the Civil Practice and Remedies Code," i.e., the Texas Arbitration Act. TEX. CIV. PRAC. REM. CODE ANN. Ch. 171 (Vernon Supp. 2004). The court denied the motion. Neatherlin Homes petitioned us for a writ of mandamus, citing the Federal Arbitration Act ("FAA"). 9 U.S.C.A. §§ 1- 16 (West 1999). Because Neatherlin Homes did not "invoke" the FAA or raise its applicability in the trial court, we deny the petition. In re L L Kempwood Assoc., L.P., 9 S.W.3d 125, 127 (Tex. 1999) (invoking the FAA); In re American Optical Corp., 988 S.W.2d 711, 714 (Tex. 1998) (raising argument in trial court).
The Texas Arbitration Act provides for an interlocutory appeal of the denial of a motion to compel arbitration. TEX.CIV.PRAC.REM. CODE ANN. § 171.098 (Vernon Supp. 2004). However, "[a] party denied the right to arbitrate under the Federal Arbitration Act by a state court has no adequate remedy by appeal and is entitled to mandamus relief to correct a clear abuse of discretion." In re L L Kempwood Assoc., L.P., 9 S.W.3d 125, 128 (Tex. 1999).