On Petition for Writ of Mandamus
The two plaintiff sisters jointly filed suit against the corporation alleging fraud, deceptive trade practices, and other tort claims arising from their respective interment rights and services contracts for family burial plots at Mont Meta Memorial Park. The parties agreed the dispute was required to be arbitrated pursuant to the Federal Arbitration Act, 9 U.S.C. sections 1-16. The contracts that the plaintiffs signed both included arbitration clauses, albeit with different contractual methods for appointing the arbitrators. The second plaintiff's contract allowed the trial court to appoint an arbitrator, while the first plaintiff's contract required the American Arbitration Association (AAA) to appoint the arbitrator if the parties could not reach a mutual agreement. Due to the differing contract terms, the trial judge severed the cases and then appointed the arbitrator for the second plaintiff's case. The first plaintiff asked the court to appoint an arbitrator in her case also. Over the objection of the corporation, the trial court appointed the same arbitrator to arbitrate the first plaintiff's case. The corporation unsuccessfully sought a writ of mandamus from the appellate court. The corporation requested that the instant court issue a writ of mandamus directing the trial court to vacate its order naming the individual as an arbitrator. The Texas Supreme Court concluded following the rationale in Magic Valley Memorial Gardens, the trial court abused its discretion by appointing an arbitrator instead of following the agreed-upon method of selection outlined in the contract. As a matter of law, the two month delay in the selection of an arbitrator in the instant case, by itself, did not establish a lapse or failure of the parties to avail themselves of the contractual selection method. Accordingly, without hearing oral argument, the corporation's petition for writ of mandamus was conditionally granted and directed the trial court to vacate its prior order appointing the individual as an arbitrator.