in Re: Rigobert Chavez

Deny and Opinion Filed July 18, 2014

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00904-CV

IN RE RIGOBERT CHAVEZ, Relator

Original Proceeding from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-13-06446-E

MEMORANDUM OPINION
Before Chief Justice Wright, Justice FitzGerald, and Justice Francis
Opinion by Chief Justice Wright
Relator filed this petition for writ of mandamus challenging the trial court’s order staying

the suit to allow arbitration to proceed under the Federal Arbitration Act. Relator contends that

there is no enforceable agreement to arbitrate because the arbitration agreement is not mutual and

because there was no meeting of the minds with regard to the arbitration provision in his

employment contract.

Mandamus is an extraordinary remedy that is available only in limited circumstances.

CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996) (orig. proceeding) (citing Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)). Mandamus is appropriate “only to correct

a clear abuse of discretion or the violation of a duty imposed by law when there is no other

adequate remedy by law.” Id. Ordinarily, to obtain mandamus relief, a relator must show both

that the trial court has clearly abused its discretion and that relator has no adequate appellate
remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004); Walker, 827 S.W.2d at

839.

Generally, an arbitration must be complete before appellate review is appropriate. Bison

Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 586–87 (Tex. 2012) (disfavoring “appellate

intrusion until the arbitration is complete”); Yaseen Educ. Soc’y v. Islamic Ass’n of Arabi, Ltd.,

406 S.W.3d 385, 389 (Tex. App.—Dallas 2013, no pet.) (same). The Supreme Court has

concluded that under the Federal Arbitration Act a party may immediately appeal an order

hostile to arbitration, whether the order is final or interlocutory, but generally may not appeal an

order favorable to arbitration unless the case is entirely dismissed pending arbitration. See Green

Tree Fin. Corp. v. Randolph, 531 U.S. 79, 86 (2000). As a result, the Texas Supreme Court has

determined that mandamus review of orders compelling arbitration is generally not appropriate

and that parties who believe they are being erroneously compelled to arbitrate when they have

not agreed to arbitration have an adequate remedy by appeal after final judgment. See In re Gulf

Exploration, LLC, 289 S.W.3d 836, 842 & n.33 (Tex. 2009). (“If a trial court compels

arbitration when the parties have not agreed to it, that error can unquestionably be reviewed by

final appeal.”).

Relator relies on the supreme court’s holding in In re Poly-America, L.P., 262 S.W.3d

337, 345 (Tex. 2008) for the proposition that “[m]andamus is the proper means by which to seek

review of an order compelling arbitration under the FAA.” Since the date of that decision,

however, the supreme court has substantially limited the holding in Poly-America restricting its

approval of the use of mandamus as a remedy for review of orders compelling arbitration to the

comparatively rare cases where the legislature has through statute expressed a public policy that

overrides the public policy favoring arbitration. The supreme court explained:

The problem in Poly–America was that granting mandamus risked frustrating one
statutory imperative, while denying it risked frustrating another. In those rare
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 cases when legislative mandates conflict, mandamus “may be essential to
preserve important substantive and procedural rights from impairment or loss,
[and] allow the appellate courts to give needed and helpful direction to the law
that would otherwise prove elusive in appeals from final judgments.” But such
conflicts are few, so the balance will generally tilt toward reviewing orders
compelling arbitration only on final appeal.

In re Gulf Exploration, 289 S.W.3d at 843 (citation omitted). Relator points to no such

statutorily expressed public policy here that would override the general principle that mandamus

review is not available for orders compelling arbitration.

Because relator has an adequate remedy by appeal of the trial court’s order, he has failed

to establish that he is entitled to relief. TEX. R. APP. P. 52.8(a). Accordingly, we DENY

relator’s petition for writ of mandamus.

140904F.P05
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE

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