Opinion

in Re Autonation USA Corporation Autonation USA Autonation, Inc. Autonation, Inc. F/K/A Mercedes Benz of Houston-Greenway And Houston Auto Imports Greenway, Ltd. D/B/A Mercedes Benz of Houston-Greenway

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Apr 22, 2004
Status
Published
Cited by
0 cases
Authority
More cited than 35.2%

The opinion

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-03-00488-CV

____________

IN RE AUTO NATION USA CORP.; AUTO NATION, USA; AUTO

NATION, INC.; AUTO NATION, INC. F/K/A MERCEDES BENZ OF

HOUSTON–GREENWAY; HOUSTON AUTO IMPORTS GREENWAY,

LTD. D/B/A MERCEDES BENZ OF HOUSTON–GREENWAY,

RELATORS

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

By petition for writ of mandamus, relators, AutoNation USA Corp.,

AutoNation, USA, AutoNation, Inc., AutoNation, Inc. f/k/a Mercedes Benz of

Houston–Greenway, and Houston Auto Imports Greenway, Ltd. d/b/a Mercedes Benz

of Houston–Greenway (the AutoNation parties), challenge the trial court’s order

denying the AutoNation parties’ second motion to compel arbitration. We determine

whether we have jurisdiction over the mandamus proceeding or the interlocutory

appeal. We dismiss the petition for writ of mandamus for want of jurisdiction.

Background

Kebret I. Mohamed, real party in interest, is a United States citizen who was

born and raised in Ethiopia. In May 1999, the Mercedes Benz Greenway dealership

hired Mohamed as a valet for its car-sales business. Mohamed alleges that, shortly

after he was hired, his co-workers began severely harassing him because of his race

and national origin. Mohamed alleges the harassment continued until he was

constructively discharged.

Mohamed signed an alternative dispute resolution agreement (“the arbitration

agreement”) with his employer, Park Place, in June 1999. The arbitration agreement

was between Mohamed and “Employer,” which was defined as (1) Park Place

Motorcars, Park Place Lexus, Park Place Bodywerks, Park Place Porsche/Audi, or any

Park Place Company and (2) any of those companies’ parent company, subsidiary

company, affiliate company, directors, officers, employees, or agents. It is undisputed

that Mohamed’s employer at the time of the arbitration agreement, Park Place, fell

under the definition of “Employer.” Some time before Mohamed quit, but after he

signed the arbitration agreement, the AutoNation parties purchased Park Place.

In November 2001, Mohamed sued the AutoNation parties and two of his

supervisors for race discrimination; intentional infliction of emotional distress; and

negligent hiring, supervision, and retention. In January 2002, the AutoNation parties

moved to compel arbitration. Mohamed contested the arbitration agreement’s validity

and enforceability. Both parties submitted summary evidence along with their

arbitration pleadings. After a non-evidentiary hearing, the trial court granted the

AutoNation parties’ motion to compel arbitration and abated the cause.

Mohamed filed a petition for writ of mandamus and an interlocutory appeal in

this Court. On October 31, 2002, this Court dismissed the interlocutory appeal and

conditionally granted the petition for writ of mandamus, instructing the trial court to

vacate its order compelling arbitration. Mohamed v. AutoNation USA Corp ., 89

S.W.3d 830, 832-33 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (hereinafter

referred to as “ Mohamed-I ”). On November 21, 2002, the trial court vacated its order

compelling arbitration. A few months later, on February 3, 2003, the AutoNation

parties filed a second motion to compel arbitration, which the trial court denied. The

AutoNation parties now file this petition for writ of mandamus.

Interlocutory Appeal or Mandamus

The trial court did not expressly determine whether the Texas General

Arbitration Act (TAA) or the Federal Arbitration Act (FAA) applied. See Tex. Civ.

Prac. & Rem. Code Ann. §§ 171.001-.098 (Vernon 2003); 9 U.S.C. §§ 1-16 (2001).

The method of review depends on which act applies. Mandamus is appropriate to

review an order denying arbitration when the FAA applies to the arbitration

agreement. See In re Valero Energy Corp. , 968 S.W.2d 916, 916-17 (Tex. 1998); Jack

B. Anglin Co. v. Tipps , 842 S.W.2d 266, 272-73 (Tex. 1992). Interlocutory appeal is

appropriate to review an order denying arbitration when the TAA applies. See Tex.

Civ. Prac. & Rem. Code Ann . § 171.098(a)(1), (2) (Vernon Supp. 2004). The

AutoNation parties stated that they filed both an interlocutory appeal and a mandamus

proceeding “out of an abundance of caution.”

The arbitration agreement in this case specifically refers to the TAA; it does not

mention the FAA. Section 10.1 of the arbitration agreement states, “Any proceeding

pursuant to the ADR Procedure shall be an arbitration proceeding subject to the Texas

General Arbitration Act.” Additionally, section 12.3 of the arbitration agreement

makes the following reference to the TAA:

Applicability of Arbitration Statute . The arbitration proceeding

shall be deemed an arbitration proceeding subject to the Texas General

Arbitration Act. If this ADR Procedure is in conflict with any mandatory

requirements of the Texas General Arbitration Act, the statute shall

govern. The Arbitrator shall have all powers granted to arbitrators under

the Texas General Arbitration Act.

Given the arbitration agreement’s express adoption of the TAA, we hold that this

agreement falls under the TAA. See In re Kellogg Brown & Root , 80 S.W.3d 611, 617

(Tex. App.—Houston [1st Dist.] 2002, orig. proceeding). Interlocutory appeal is, thus,

the appropriate method to review the order denying arbitration. See Tex. Civ. Prac.

& Rem. Code Ann . § 171.098(a)(1), (2). Accordingly, we dismiss the petition for

writ of mandamus.

George C. Hanks, Jr.

Justice

Panel consists of Justices Nuchia, Hanks, and Higley.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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