Texas Private Employment Ass'n v. Lyn-Jay International, Inc.

OPINION ON REHEARING

Appellant, Texas Private Employment Association d/b/a Texas Association of Personnel Consultants (“TAPC”), has filed a motion for rehearing in which it requests that we withdraw our opinion affirming the judgment of the trial court and reverse its judgment instead. We decline to do so.

Appellant cites Sedco v. Petroleos Oil Co., 767 F.2d 1140, 1145 (5th Cir.1985) for the proposition that

[W]hen confronted with arbitration agreements, we presume that arbitration should not be denied unless it can be said with positive assurance that an arbitration *532clause is not susceptible of an interpretation which would cover the dispute at issue. (emphasis added)

Appellant argues that because the arbitration agreement covers the disputed issue, our af-firmance of the trial court’s refusal to require arbitration is in error. We disagree with this analysis. Assuming that the dispute falls within the scope of the agreement, arbitration is still not required because TAPC is not a party to the agreement.

Appellant also argues that because individual members of the organization are parties to the agreement, the entire dispute among all parties, including TAPC, should be decided by arbitration. Appellant appears to rely on Sedeo, Id. at 1148:

Under the Arbitration Act, an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute, but not to the arbitration agreement. Tai Ping Insurance Co. v. M/V WARSCHAU, 731 F.2d 1141, 1146 (5th Cir.1984).

Appellant’s reliance on this language to justify its position is misplaced. In Tai Ping, the trial court stayed arbitration between two parties to a multi-party lawsuit, on the grounds that arbitration would duplicate adjudication of the issues that would later be decided in the lawsuit. The appellate court reversed the stay order, holding that duplication of effort was insufficient as an excuse to obviate an arbitration agreement. There was never a suggestion that anyone not a party to the arbitration agreement be forced to arbitrate simply because of commonality of the dispute.

We overrule appellant’s motion for rehearing.