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American Standard and The Trane Co. v. Brownsville Independent School District2/10/2005
This is an arbitration case that involves matters related to the construction of Besteiro Middle School and Aiken Elementary School located in Brownsville, Texas. American Standard and The Trane Company (Trane), a sub-subcontractor, filed suit against Brownsville Independent School District (BISD) seeking a temporary injunction to preserve evidence in a personal injury lawsuit filed in another court; that suit involves damages related to the construction of the schools in question. BISD counterclaimed for defects and damages and filed third-party actions against various parties, including general contractors, subcontractors and sub-subcontractors. Trane and the third-party defendants filed motions to compel arbitration and for dismissal or abatement of the suit pending arbitration. The Honorable Leonel Alejandro, presiding judge of the 357th District Court, Cameron County, Texas, having reviewed the motions, responses, replies, and the argument of counsel, denied the motions. Trane and the third-party defendants now challenge the trial court's ruling. We dismiss the interlocutory appeal for want of jurisdiction and deny the petition for writ of mandamus.
On June 29, 2004, in cause number 13-04-184-CV, appellants, American Standard and The Trane Company, D. Wilson Construction Company, Sechrist-Hall Company, Stotler Construction Company, Wrightway Construction, Inc., Rio Mechanical, Inc., Zamora Engineering, Inc., Mac's Insulation, Inc. and Victoria Air Conditioning LTD., appealed the trial court's order denying their motions to compel arbitration. On June 29, 2004, relators, D. Wilson Construction Company, American Standard and The Trane Company, Sechrist-Hall Company, Stotler Construction Company, Wrightway Construction, Inc., Rio Mechanical, Inc., Victoria Air Conditioning LTD., Zamora Engineering, Inc., and Mac's Insulation, Inc., filed a petition for writ of mandamus in cause number 13-04-333-CV, requesting this Court to direct respondent to vacate his order of March 23, 2004, denying relators' motions to compel arbitration and for dismissal or abatement of the suit pending arbitration, and to enter an order compelling BISD to arbitrate its disputes and relators' claims and stay the underlying suit.
BISD responded requesting the appeal be dismissed for want of jurisdiction because the arbitration provision is governed by the Federal Arbitration Act (FAA). In the mandamus proceeding, BISD asked this Court to deny the petition because the contracts contain no arbitration language or contain language that is ambiguous as to the agreement to arbitrate and, alternately, because Trane and Stotler Construction Company waived their rights to arbitrate by their inconsistent actions; Trane by filing this action and a cross-claim against BISD in the personal injury lawsuit, and Stotler Construction Company by filing a cross-claim against BISD in the personal injury lawsuit.
Given the nature of these petitions for writ of mandamus and the related interlocutory appeal, on July 9, 2004, this Court granted relators/appellants' motion to consolidate the cases. We now render a decision disposing of both simultaneously. In re Valero Energy Corp., 968 S.W.2d 916, 916-17 (Tex. 1998) (orig. proceeding) (" he better course of action for a court of appeals confronted with an interlocutory appeal and a mandamus proceeding seeking to compel arbitration would be to consolidate the two proceedings and render a decision disposing of both simultaneously . . . .").
Interlocutory appeal is appropriate to review an order denying arbitration under the Texas Arbitration Act (TAA). See Tex. Civ. Prac. & Rem. Code Ann. ยงยง 171.021, 171.098(a)(1) (Vernon Supp. 2004-2005). Mandamus is appro
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