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In re Brown & Root Inc.6/18/1998
FROM THE 116th DISTRICT COURT OF DALLAS COUNTY, TEXAS CAUSE NO. 96-13170
OPINION AND ORDER
Relator contends the trial Judge abused his discretion in denying its motion to compel arbitration on plaintiff's claim for employment discrimination under the Federal Arbitration Act (FAA) pursuant to the parties' written agreement. We conclude the trial Judge abused his discretion in denying the motion to compel.
Henry Fox became an employee of Brown & Root, Inc., by way of acquisition of his former employer. At that time he signed a Brown and Root "Assignment Authority Form" which provides that all disputes involving his employment with the company will be submitted to binding arbitration. After he was later laid off, Fox sued Brown & Root, for unlawful employment discrimination. As part of its answer, Brown & Root asserted the claims should be submitted to arbitration under the parties' agreement.
The court ordered mediation. Brown & Root consented to mediation with a reservation of its right to arbitration under the agreement. After unsuccessful mediation, Brown & Root filed a motion to compel arbitration. The day before a hearing on the motion, Fox filed written opposition to the motion on several grounds. At the hearing, Fox asserted a new ground of opposition. Fox claimed that Brown & Root had not signed the contract, a Brown & Root employee merely witnessed Fox's signature; thus, the agreement is not binding.
The Judge denied the motion to compel. The order states the reason for the denial is "because Brown & Root, Inc. is not a party to the contract." Brown & Root filed a motion to reconsider which was denied. Brown & Root then filed this mandamus asserting the Judge abused his discretion in denying the motion to compel because Brown & Root is not a party to the agreement. Fox asserts the Judge is correct and, further, that this is a personal injury claim which under Texas law is not subject to arbitration under an agreement entered into prior to the occurrence giving rise to the claim and not filed in court.
Mandamus is the appropriate remedy to enforce an agreement under the FAA. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). The party seeking to enforce an arbitration agreement must show a valid agreement exists and the claims asserted are within its terms. Once this is shown, the court must compel arbitration. 9 U.S.C. Section3 (1970); EZ Pawn Corp. v. Mancias, 934 S.W.2d 87 (Tex. 1996).
Fox argues the Texas Arbitration Act should be applied and that Texas law does not allow arbitration in this case. Fox did not assert this ground below; therefore, the trial court did not abuse its discretion for failing to compel on this ground. Even considering the merits of Fox's claims, they fail. The arbitration agreement expressly states that the FAA applies. Under Texas law an employment discrimination claim is a proper subject for an arbitration agreement under the FAA. EZ Pawn, 934 S.W.2d at 90-91.
Fox challenges the binding effect of the agreement on Brown & Root because Brown & Root did not sign it. The FAA does not require the arbitration agreement be signed, just that it be in writing. 9 U.S.C. Section2 (1970); Valero Refining, Inc. v. MT Lauberhorn, 813 F.2d 60, 64 (5th Cir. 1987); Shearson Leahman v. McKay, 763 S.W.2d 934 (Tex. App.--San Antonio 1989, no writ). Further, a party may show consent to be bound by the arbitration agreement by their actions. See Hearthshire Braeswood Plaza Ltd. Partnership v. Bill Kelly Co., 849 S.W.2d 380, 384 (Tex. App.--Houston [14th Dist.] 1993, writ denied).
The arbitration agreement in this cas
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