The central issue in this case is whether a party waives its right to arbitration when it files suit in court to resolve disputes that are not subject to the parties' arbitration agreement. *Page 495 The majority answers the question "yes." Because the majority misapplies well-established precedent regarding the waiver of a contractual right to arbitration, I respectfully dissent.
FACTUAL AND PROCEDURAL BACKGROUND The majority's statement of the factual and procedural background is essentially correct. Because the trial court's order denying plaintiffs' motion to compel arbitration was rendered before any discovery was conducted or evidentiary hearings were held, the factual background to the three causes of action alleged by plaintiffs is taken primarily from the allegations found in paragraphs 6 through 14 of plaintiffs' original petition. In May 1995, Cates began acting as an agent for the medical centers for certain matters. The agency relationships were formalized on August 1, 1995, when Vireo and Franklin each executed a management service agreement with Eagle Medical. On November 1, 1995, Chaetura executed a similar management service agreement with Eagle Medical. Cates is the president and sole shareholder of Eagle Medical. CD Testing was not a party to any of the agreements.
By these agreements, Eagle Medical agreed to operate and manage the administrative and non-medical aspects of plaintiffs' practices and clinics. Each management agreement included an arbitration clause by which plaintiffs and Eagle Medical mutually agreed that:
Except as provided below, no civil action concerning any dispute under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration. . . . [T]he laws of the State of Texas shall govern, and the arbitrator solely shall apply them to, the interpretation and construction of this Agreement. . . . Notwithstanding the foregoing, either party shall have the right, at its sole discretion, to seek equitable relief from a court of competent jurisdiction, without being limited in recourse to arbitration, . . . which equitable relief shall include (but not be limited to) the entering of a temporary restraining order and/or a preliminary injunction.
(Emphasis added.) In another paragraph of each agreement, Eagle Medical agreed not to compete with the medical centers in Travis, Hays, and Williamson Counties during the terms of the management agreements and for a period of twelve months after the agreements were terminated for any reason.
While acting as the agent for the medical centers, Cates entered into agreements with Southwestern Bell Telephone to provide telephone service to Vireo and Chaetura. Without the principals' authorization, Cates entered the Bell agreements under the name of Dan Cates d/b/a CD Testing, Inc. instead of under the principals' names. The telephone numbers were listed in the Bell directory under Southwest Medical Center for the use of the medical centers' patients.
On or about November 9, 1995, plaintiffs terminated each of the management agreements due to Eagle Medical's alleged failure to perform its duties and obligations under the agreements. After the management agreements were terminated, the medical centers became aware that Cates had operated CD Testing during the terms of the agreements in direct competition with the medical centers. Plaintiffs also learned that, after the agreements were terminated, Cates actively recruited business from the clients of the medical centers and represented to the clients that the medical centers had gone or were about to go out of business.
Cates claimed that the management agreements were wrongfully terminated. The parties attempted settlement informally. On or about February 8, 1996, plaintiffs notified Cates and Eagle Medical that settlement was unrealistic and that the parties would need to arbitrate. Also on February 8, plaintiffs discovered that, without giving them notice, Cates had the telephone company disconnect services to Vireo and Chaetura for some of the centers' telephone lines. In addition to the huge volume of telephone calls the medical centers routinely receive from their patients, many of the medical centers' patients suffer from asthma and, because it was asthma season, needed to contact the medical centers for emergencies. *Page 496 On February 9, plaintiffs filed this lawsuit seeking temporary and permanent injunctions to prevent Cates, Eagle Medical, and/or CD Testing from competing with plaintiffs in violation of the covenant not to compete contained in the management agreements. Additionally, plaintiffs asserted causes of action seeking damages for (1) tortious interference with contracts and business relationships and (2) breach of fiduciary duty. Also on February 9, plaintiffs sought and the trial court granted a temporary restraining order to keep defendants from interfering with or disconnecting telephone service to the medical centers. The parties later agreed to the entry of an order for a temporary injunction. On February 26, defendants filed their original answer and counterclaims. Defendants' counterclaim asserted wrongful termination of the agreements and sought damages, a declaratory judgment, injunctive relief, and attorney's fees. On March 18, plaintiffs answered and filed a motion seeking to compel arbitration of defendants' counterclaims; the motion also sought to abate the related trial proceedings pending arbitration. Defendants did not file a response to the motion.
After a hearing at which no evidence was adduced, the trial court denied plaintiffs' motion to compel arbitration. The court concluded that, by initiating the lawsuit, plaintiffs had waived their right to seek arbitration of disputes under the management agreements, including defendants' counterclaims. Plaintiffs filed this interlocutory appeal complaining of the trial court's denial of their motion to refer defendants' counterclaims to arbitration.
DENIAL OF MOTION TO COMPEL ARBITRATION In four points of error, plaintiffs contend the trial court erred by denying their motion to refer defendants' counterclaims to arbitration. Plaintiffs argue they did not formally seek arbitration before filing suit because their own causes of action pertained to events that occurred outside the scope of the management agreements. Defendants answered without raising arbitration as an affirmative defense or otherwise requesting that plaintiffs' claims be arbitrated. Defendants asserted various counterclaims against plaintiffs, to which plaintiffs answered and filed a motion to refer only defendants' counterclaims to arbitration. At the hearing on plaintiffs' motion, defendants' sole contention was that plaintiffs had waived the right to seek arbitration by filing their own lawsuit without first seeking arbitration of the claims asserted. Plaintiffs contend that, as a matter of law, they did not waive their right to arbitration. The majority concludes the parties mutually repudiated the arbitration agreement. I respectfully disagree. Neither party has repudiated the arbitration agreement. Furthermore, the plaintiffs have not waived their right to arbitration because the defendants failed to establish prejudice and failed to establish that the plaintiffs' claims fall within the scope of the arbitration agreement.
1. Repudiation of the Arbitration Agreement In the present case, plaintiffs sued and defendants answered and counterclaimed. Rather than defendants seeking arbitration, as in the usual case, here plaintiffs sought arbitration of defendants' counterclaims, asserting that their own causes of action were not within the scope of the management agreement while the defendants' causes of action were within the agreements. I will assume that the majority is correct in its proposition that a party who sues in court on an arbitrable claim, without having initiated arbitration, creates a "right of election" in the opposing party to repudiate the arbitration agreement. However, the rule does not apply in the present case because repudiation of arbitration agreements must be clear and unequivocal. L.H.Lacy Co. v. City of Lubbock, 559 S.W.2d 348, 352 (Tex. 1977). A party cannot be said to have unequivocally repudiated its right to arbitration when it asserts claims it reasonably believes are outside the scope of any arbitration agreement. Because the claims asserted by plaintiffs in the present case are at least arguably outside the scope of the arbitration clause, plaintiffs cannot be said to have unequivocally repudiated their right to arbitrate. *Page 497 Furthermore, the cases on which the majority relies refer to the common-law proposition that either party to an executory agreement providing for arbitration of future disputes is allowed to revoke the agreement at any time before the arbitration proceeding resulted in an award. See Mendozav. Canizales, 695 S.W.2d 266, 271 (Tex.App. — San Antonio 1985, no writ). This rule is derived from the common law, where courts have refused to enforce agreements to arbitrate specific disputes. See L.H. Lacy Co., 559 S.W.2d at 352. The purpose of the Texas General Arbitration Act ("TGAA"), which governs the present arbitration clause,1 was to abrogate this common-law proposition.See Tex.Civ.Prac. Rem.Code.Ann. § 171.021(a) (West 1997). Moreover, application of the proposition has been criticized even by courts interpreting common-law arbitration agreements. See, e.g., L.H. Lacy Co., 559 S.W.2d at 352; Wylie Indep. Sch. Dist. v. TMC Foundations,Inc., 770 S.W.2d 19, 21-22 (Tex.App. — Dallas 1989, writ dism'd); Olshan Demolishing Co. v. Angleton Indep.Sch. Dist., 684 S.W.2d 179, 184 (Tex.App. — Houston [14th Dist.] 1984, writ ref'd n.r.e.). The other support relied on by the majority for its proposition that the parties mutually repudiated the arbitration agreement disregards well-established precedent regarding the waiver of a contractual right to arbitration.
2. WaiverA. Prejudice
Arbitration of disputes is strongly favored under both federal and Texas law. Accordingly, a strong presumption exists against the waiver of a contractual right to arbitration. EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 89 (Tex. 1996); see also Prudential Sec. Inc. v.Marshall, 909 S.W.2d 896, 898-99 (Tex. 1995) (citingMoses H. Cone Memorial Hosp. v. Mercury Constr. Corp.,460 U.S. 1, 24-25, 103 S.Ct. 927, 941-42, 74 L.Ed.2d 765 (1983)); Moore v. Morris, 931 S.W.2d 726, 728 (Tex.App. — Austin 1996, orig. proceeding). A party does not waive its right to arbitration simply by invoking the judicial process. Pepe Int'l Dev. Co. v. Pub BrewingCo., 915 S.W.2d 925, 931 (Tex.App. — Houston [1st Dist.] 1996, no writ) (citing Central Nat'l Ins. Co. v.Lerner, 856 S.W.2d 492, 494 (Tex.App. — Houston [1st Dist.] 1993, orig. proceeding)). Additionally, delay in making a demand for arbitration does not constitute a waiver when there is no actual prejudice to the party opposing arbitration.Pepe Int'l Dev. Co., 915 S.W.2d at 931. In order to waive a contractual right to arbitration, the party seeking arbitration must have substantially invoked the judicial process to the opposing party's detriment. D. WilsonConstr. Co. v. McAllen Indep. Sch. Dist., 848 S.W.2d 226, 230 (Tex.App. — Corpus Christi 1992, writ dism'd w.o.j.). The party opposing arbitration bears the burden of proof to show it has suffered prejudice. Id.; HearthshireBraeswood Plaza Ltd. v. Bill Kelly Co., 849 S.W.2d 380, 386 (Tex.App. — Houston [14th Dist.] 1993, writ denied);USX Corp. v. West, 759 S.W.2d 764, 767 (Tex.App. — Houston [1st Dist.] 1988, orig. proceeding).
The waiver of a right to arbitrate must be intentional.Merrill Lynch, Pierce, Fenner Smith v. Eddings, 838 S.W.2d 874, 879 (Tex.App. — Waco 1992, writ denied). Implying waiver from a party's actions is appropriate only if the facts demonstrate that the party seeking to enforce arbitration intended to waive its arbitration right. EZPawn Corp., 934 S.W.2d at 89; Eddings, 838 S.W.2d at 879. When deciding whether the party seeking arbitration has substantially invoked the judicial process and prejudiced the party opposing arbitration, one of the factors courts consider is how much activity has taken place in the lawsuit. See D. Wilson Constr. Co., 848 S.W.2d at 230 (denial of motion to compel arbitration was improper where judicial process was barely invoked when motion filed);Eddings, 838 S.W.2d at 879 (denial of motion was improper where no showing by opposing party that it was prejudiced by proponent's delay in seeking arbitration, *Page 498 even though proponent of arbitration initially invoked judicial process); Marble Slab Creamery, Inc. v. Wesic,Inc., 823 S.W.2d 436, 438 (Tex.App. — Houston [14th Dist.] 1992, no writ) (denial of motion was proper where arbitration not mentioned until one month before trial after much discovery conducted and active pursuit of legal remedies by proponent of arbitration).
In the present case, plaintiffs sued and defendants answered and counterclaimed. Unlike the usual case, where a defendant seeks arbitration, here plaintiffs sought arbitration of the defendants' counterclaims, contending that the counterclaims were within the scope of the management agreements while arguing that their own causes of action were not within the scope of the agreements. Therefore, plaintiffs contend they were timely seeking arbitration of defendants' claims. Defendants, on the other hand, claim that plaintiffs waived arbitration by instituting the lawsuit in the first place. Defendants have never even attempted, however, to show that they were prejudiced by plaintiffs' filing suit.
Because defendants argued at the hearing that plaintiffs waived their right to arbitration, it was defendants' burden to show waiver, including that plaintiffs substantially invoked the judicial process and thereby prejudiced defendants. At the hearing before the trial court, the only argument defendants asserted to support waiver was that plaintiffs had filed suit before seeking arbitration. Defendants failed to file a written response to plaintiffs' motion to compel arbitration. Defendants neither presented evidence nor argued that they had been prejudiced by plaintiffs' actions. In reviewing the trial court's docket sheets submitted with the record in this cause, very little activity had occurred in the cause before plaintiffs sought arbitration. After plaintiffs answered defendants' counterclaims and filed their motion to compel arbitration, activity in the cause included only defendants' amended answer, plaintiffs' motion to quash, and a memorandum of law relating to a hearing on a temporary injunction. Thus, although plaintiffs invoked the judicial process, defendants failed to show they were prejudiced thereby.
Defendants failed to show that plaintiffs substantially invoked the judicial process or that defendants had been prejudiced thereby. Accordingly, defendants failed to overcome the strong presumptions in favor of arbitration and against waiver.
B. Scope of agreement
Moreover, even if defendants were not required to show prejudice in order to assert waiver, they have not demonstrated that the causes of action asserted by plaintiffs were under the management agreements so as to produce any waiver of their right to arbitration.
Plaintiffs' original petition asserted three causes of action, seeking: (1) injunctive relief prohibiting defendants from soliciting persons in Travis, Hays, or Williamson Counties in violation of the noncompetition provision; (2) damages for breach of fiduciary duty, and (3) damages for tortious interference with contracts and business relationships. When a court decides whether to grant or deny a motion to compel arbitration, it must determine whether the parties agreed to arbitrate and, if so, the scope of their agreement.Merrill Lynch, Pierce, Fenner Smith v. Eddings, 838 S.W.2d 874, 878 (Tex.App. — Waco 1992, writ denied). It is undisputed here that the counterclaims asserted by defendants arose under the management agreements. Thus, plaintiffs were entitled to have those claims arbitrated unless they had waived their right to arbitration. As noted above, the only ground on which defendants assert waiver is that the causes of action plaintiffs alleged in their lawsuit also arose under the management agreements. At issue, therefore, is whether any of the three claims asserted by plaintiffs were within the scope of the agreements.2 *Page 499
(i) Injunctive Relief
By paragraphs 17 through 20 of their petition, plaintiffs requested injunctive relief. By these portions of the petition, plaintiffs complained that defendants caused them irreparable harm by (1) having the telephone company disconnect service to the medical centers, and (2) unfairly competing against the medical centers. Plaintiffs sought to have defendants restrained from such conduct. The parties agree that the terms of the management agreements specifically excluded requests for injunctive relief from the reach of the arbitration clause. Accordingly, plaintiffs' cause of action for injunctive relief was not inconsistent with the arbitration clause and could not give rise to a waiver of plaintiffs' right to arbitration.(ii) Breach of Fiduciary Duty
By paragraph 16 of their petition, plaintiffs alleged that defendant Cates breached a fiduciary duty:SECOND CAUSE OF ACTION
BREACH OF FIDUCIARY DUTY
16. Defendant Cates' conduct prior to execution of the Management Agreements constitutes breach of fiduciary duty in that Cates failed to exercise reasonable care and diligence in to [sic] the medical centers in the performance of his duties, he breached his duty to obey, he breached his duty to give information, and he breached his duty of loyalty.
In reading the allegation, the initial clause provides the foundation for the claim: "Cates' conduct prior to execution of the Management Agreements." (Emphasis added.) In an earlier paragraph containing allegations of factual background, the petition asserts that Cates performed several tasks for plaintiffs before the management agreements were executed. The only reasonable construction of plaintiffs' breach-of-fiduciary-duty claim is that it alleged a breach of duty before the parties executed the agreements. Because the cause of action alleged by paragraph 16 relates to a dispute that did not occur within the scope of the agreements and consequently is not subject to the arbitration clauses of the agreements, it could not give rise to a waiver of plaintiffs' right to arbitration.
(iii) Tortious Interference with Contracts and Business Relationships
By paragraph 15, plaintiffs' petition asserted that defendants tortiously interfered with plaintiffs' contractual and business relationships:FIRST CAUSE OF ACTION
TORTIOUS INTERFERENCE WITH CONTRACTS AND BUSINESS RELATIONSHIPS
15. The Defendants' conduct constitutes wrongful or malicious interference with the Plaintiffs' performance or the formation of the contracts or the right to pursue a lawful business calling, trade, or occupation for which damages may be recovered.
To prove tortious interference with a contract, a plaintiff must prove that a defendant willfully and intentionally interfered with a contract that proximately caused the plaintiff actual damages. Victoria Bank Trust Co. v.Brady, 811 S.W.2d 931, 939 (Tex. 1991); JulietteFowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 664 (Tex. 1990). To prove tortious interference with prospective contracts or business relationships, a plaintiff must prove that the defendant willfully and intentionally acted to prevent a contractual relationship that the plaintiff had a reasonable probability of realizing, which proximately caused the plaintiff actual damages. Exxon Corp. v. Allsup,808 S.W.2d 648, 659 (Tex.App. — Corpus Christi 1991, writ denied). The nature of a tortious interference claim is that a third party interfered with the plaintiff's business relationships. A party to a contract generally cannot tortiously interfere with its own contract. Hussong v.Schwan's Sales Enters., Inc., 896 S.W.2d 320, 326 (Tex.App. — Houston [1st Dist.] 1995, no writ) (citingSchoellkopf v. Pledger, 778 S.W.2d 897, 902 (Tex.App. — Dallas 1989, writ denied)). Liability for tortious interference is usually founded only upon the acts of an interfering third party. Id.
In the present case, the contracts and business relationships alleged were those between plaintiffs and their unidentified patients — existing and prospective — at the *Page 500 medical centers. The majority holds that, by their tortious interference cause of action, plaintiffs were actually alleging a violation of the noncompetition provision of the management agreements, i.e., a mere breach of contract. However, the relevant factual allegations contained in plaintiffs' petition do not support this construction of plaintiffs' claim. By paragraph 11 of their petition, plaintiffs alleged:
After the management agreements were terminated, on information and belief, the medical centers became aware that Cates had continued to operate CD Testing during the term of the Management Agreements in direct competition with the medical centers and that after the contract was terminated, Cates actively recruited business from the clients of the medical centers and has represented to the medical centers' clients that the medical centers have or are about to go out of business.
(Emphasis added.) Thus, the allegations of paragraph 11 refer to improper solicitations and representations by CDTesting to the clinics' patients after the management agreements were terminated. Because CD Testing was not a party to the management agreements, an allegation that CD Testing was unfairly or improperly soliciting plaintiffs' clients or making misrepresentations to them could not be a claim under those agreements. The only other factual allegation that appears to relate to plaintiffs' claim for tortious interference was paragraph 13 of their petition, by which plaintiffs alleged that Cates had wrongfully disconnected the clinics' telephone service after the agreements were terminated. Again, this allegation has nothing to do with a violation of the noncompetition clause of the management agreements. Accordingly, plaintiffs' tortious interference claim did not arise under the management agreements and could not give rise to a waiver of plaintiffs' right to arbitration.
Alternatively, reading the tortious-interference cause of action and the related factual allegations as broadly as possible, the scope of that claim is at best ambiguous. For example, even if the factual allegations in paragraphs 11 and 13 — or other portions of the petition — were intended to refer to Eagle Medical instead of CD Testing, such allegations could logically relate to plaintiffs' request for injunctive relief rather than one of their tort claims for damages. And, as stated earlier, the management agreements expressly excluded any claim for injunctive relief from the arbitration provision. Surely the strong presumption against waiver of the right to arbitrate cannot be overcome by an ambiguous allegation.
Accordingly, none of plaintiffs' three causes of action arose under the management agreements so as to produce waiver of plaintiffs' right to arbitration.
3. Threat of Inconsistent Results The majority also holds that reversing the district court's order and compelling Eagle Medical's and Cates's counterclaims to arbitration would lead to the possibility of contradictory determinations. The majority argues the trial court and arbitrators could potentially construe provisions of the Management Agreements differently. As discussed above, however, plaintiffs' claim for tortious interference has nothing to do with the noncompetition clause of the Management Agreements, and plaintiffs' breach of fiduciary duty cause of action relates to events that took place "prior to the execution of the Management Agreements." Thus, there would be no need for the trial court to "interpret" the Management Agreements. Therefore, plaintiffs' and defendants' claims are not so factually intertwined as to risk multiple determinations of the same matter.3
Moreover, even if compelling defendants' counterclaims to arbitration could lead to the possibility of inconsistent determinations, the proper approach is not to annul plaintiffs' contractual right to arbitration and mandate that all disputes be resolved in court. Such a holding would be directly contrary to Texas's public policy strongly favoring arbitration of disputes. *Page 501 924 S.W.2d 943, 944 (Tex. 1996); Marshall, 909 S.W.2d at 899; Brazoria County v. Knutson, 142 Tex. 172,176 S.W.2d 740, 743-44 (1943). Potentially inconsistent results is not a sufficient ground to nullify this policy. If in fact plaintiffs' and defendants' causes of action are so interwoven that they cannot be maintained without reference to the management agreements, the proper result is not to invalidate a party's right to arbitration, but rather might be to compel all claims to arbitration. See, e.g.,Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 271 (Tex. 1992); Emerald Texas, Inc. v. Peel, 920 S.W.2d 398, 404 (Tex.App. — Houston [1st Dist.] 1996, no writ);Howell Crude Oil Co. v. Tana Oil Gas Corp., 860 S.W.2d 634, 639 (Tex.App. — Corpus Christi 1993, no writ); Valero Energy Corp. v. Wagner Brown, 777 S.W.2d 564, 567 (Tex.App. — El Paso 1989, writ denied). Courts of appeals have severed cases involving both arbitrable and nonarbitrable claims by sending some causes of action to arbitration and others to trial. See, e.g., DecisionControl Systems, Inc. v. Personnel Cost Control, Inc., 787 S.W.2d 98, 100-01 (Tex.App. — Dallas 1990, no writ). No court, however, confronted with both arbitrable and nonarbitrable claims, has abrogated a party's right to arbitration and ordered that arbitrable causes of action be tried in court with other nonarbitrable claims.
Although Texas courts have had little opportunity to decide how to proceed when parties assert both arbitrable and nonarbitrable claims, federal courts have addressed the issue on a number of occasions. The United States Supreme Court has examined this issue in regard to the Federal Arbitration Act ("FAA").4 See 9 U.S.C.A. §§ 1-16 (West 1970 Supp. 1996). In Dean Witter Reynolds, Inc. v. Byrd,470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), Byrd invested funds with Dean Witter and signed a customer agreement providing for arbitration of disputes between the parties arising under the agreement. Byrd later sued Dean Witter alleging violations of the Securities Exchange Act of 1934 and various state law provisions. Id. at 214, 105 S.Ct. at 1239. Dean Witter moved to sever and compel the state law claims to arbitration. Id. at 215, 105 S.Ct. at 1239-40. The district court and court of appeals denied Dean Witter's motion, holding that when arbitrable and nonarbitrable claims arise out of the same transaction, and are sufficiently intertwined, a court may deny arbitration as to the arbitrable claims and try all the claims together in court. Id. at 216-17, 105 S.Ct. at 1240-41. The Supreme Court rejected the so called "doctrine of intertwining" and reversed the court of appeals. While acknowledging the lower court's concern for avoiding bifurcated proceedings and potentially redundant efforts to litigate the same factual questions twice, the Supreme Court held that the "[FAA] requires district courts tocompel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceedings in different forums." Id. at 217, 105 S.Ct. at 1241 (emphasis added); see also Girardv. Drexel Burnham Lambert, Inc., 805 F.2d 607, 611 (5th Cir. 1986). The court noted that even if the result is "piecemeal litigation," the pre-eminent concern in passing the FAA was to enforce private agreements into which parties had entered. Byrd, 470 U.S. at 221, 105 S.Ct. at 1242-43;see also Mitsubishi Motors Corp. v. SolerChrysler-Plymouth, Inc., 473 U.S. 614, 625-26, 105 S.Ct. 3346, 3353-54, 87 L.Ed.2d 444 (1985); NPS Communications,Inc. v. Continental Group, Inc., 760 F.2d 463, 465 (2d Cir. 1985). "The heavy presumption should be that the arbitration and the lawsuit will each proceed in its normal course." Byrd, 470 U.S. at 225, 105 S.Ct. at 1245 (White, J., concurring).
Many other federal courts have recognized the merit in allowing arbitration and litigation to proceed simultaneously.See, e.g., Chang v. Lin, 824 F.2d 219, 223 (2d Cir. 1987); Girard v. Drexel Burnham Lambert, Inc.,805 F.2d 607, 611 (5th Cir. 1986); Sam Reisfeld Son ImportCo. v. S.A. Eteco, 530 F.2d 679, 681 (5th Cir. 1976);Roueche v. Merrill Lynch Pierce Fenner Smith, Inc., *Page 502 554 F. Supp. 338, 340 (D.Haw. 1983); Horne v. New EnglandPatriots Football Club, Inc., 489 F. Supp. 465, 470 (D.Mass. 1980).
The policy of enforcing private arbitration agreements was likewise a primary concern of the legislature in enacting the TGAA. See Tex.Civ.Prac. Rem. Code Ann. § 171.021 (West 1997). The majority, however, ignores this policy and returns to the rejected "intertwining doctrine," effectively allowing parties to avoid arbitration simply by asserting nonarbitrable claims or by adding parties who are not subject to the arbitration agreement. See Prudential-Bache Sec.,Inc. v. Garza, 848 S.W.2d 803, 807 (Tex.App. — Corpus Christi 1993, orig. proceeding) (arbitration agreement must be enforced despite presence of other parties); seealso Tenneco Resins, Inc. v. Davy Int'l, AG, 770 F.2d 416 (5th Cir. 1985).
CONCLUSION I would hold that plaintiffs' causes of action for injunctive relief and tort damages were not subject to the arbitration clauses in the management agreements, and that, by asserting those claims, plaintiffs did not waive their right to seek arbitration of defendants' counterclaims. Accordingly, I would sustain plaintiffs' points of error one through four, reverse the trial court's order, and remand the cause to the trial court.