Austin Commercial Contractors, L.P. v. Carter & Burgess, Inc.
347 S.W.3d 897
Tex. App.2011Background
- ACCLP contracted with Regents for a prime project at Los Alamos; ACCLP hired Carter & Burgess for architectural/engineering services under a Consultant Agreement.
- ACCLP sued Carter & Burgess for breach of contract; Carter & Burgess answered and asserted a counterclaim.
- ACCLP moved to compel arbitration, relying on a clause directing disputes to the Prime Contract's dispute resolution process if any.
- Prime Contract requires mediation then binding arbitration before the CBCA; CBCA is the designated forum, albeit with a successor framework since the Board no longer exists.
- Trial court granted arbitration but directed it to proceed before the AAA rather than the CBCA; ACCLP sought mandamus and timely appealed the interlocutory order; the court consolidated the proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the interlocutory order is appealable under FAA section 16 | ACCLP argues section 16 permits review of the arbitration-directed order | Carter & Burgess contends the order is not appealable under section 16 | Interlocutory appeal dismissed for lack of jurisdiction |
| Whether mandamus review is appropriate to correct arbitration forum error | ACCLP seeks mandamus to compel CBCA arbitration per the Prime Contract | Carter & Burgess argues no mandamus where FAA arbitration is involved and rights are contractual | Mandamus granted to require arbitration under CBCA; AAA order vacated |
| Whether the arbitration should proceed under CBCA per Prime Contract | Contractual choice compels CBCA procedures | Procedural issues should be decided by arbitrator; CBCA may be unavailable or inapplicable | Trial court abused discretion by ordering AAA; arbitration must proceed under CBCA as dictated by Prime Contract |
Key Cases Cited
- CMH Homes v. Perez, 340 S.W.3d 444 (Tex. 2011) (interlocutory appeal cannot be used to bypass FAA limits; governs when to treat interlocutory orders as mandamus or appeal)
- Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79 (U.S. 2000) (arbitration-favoring orders generally not immediately appealable under FAA)
- Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (U.S. 2002) (procedural arbitrability to be decided by arbitrator; questions of prereqs to arbitration are for arbitrator)
- In re Gulf Exploration, LLC, 289 S.W.3d 836 (Tex. 2009) (section 51.016 appeal scope; limitations on appeal of arbitration orders)
- In re D. Wilson Const. Co., 196 S.W.3d 774 (Tex. 2006) (adequacy of appeal remedy when contracted arbitration rights are denied)
- Volt Info. Sci., Inc. v. Bd. of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468 (U.S. 1989) (FAA framework; enforce arbitration agreements under federal law)