Tankinetics, Inc. v. Texas Workforce Commission and Sol Zittrer--Appeal from 215th District Court of Harris County

Appeal Dismissed; Petition for Writ of Mandamus Denied and Memorandum Opinion filed December 21, 2005

Appeal Dismissed; Petition for Writ of Mandamus Denied and Memorandum Opinion filed December 21, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-01020-CV

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TANKINETICS, INC., Appellant

V.

TEXAS WORKFORCE COMMISSION AND SOL ZITTRER, Appellees

On Appeal from the 215th District Court

Harris County, Texas

Trial Court Cause No. 01-32311

NO. 14-04-01204-CV

IN RE TANKINETICS, INC., Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M O P I N I O N

Relator, Tankinetics, Inc., filed a petition for writ of mandamus and an alternative interlocutory appeal from the trial court=s order denying its motion to compel arbitration. See Tex. Civ. Prac. & Rem. Code Ann. _ 171.098 (Vernon 2005); Tex. Gov=t Code Ann. _ 22.221 (Vernon 2005); see also Tex. R. App. P. 52. These cases were consolidated in this court.

A petition for writ of mandamus is the appropriate mechanism to challenge a denial of arbitration when an arbitration provision is governed by the Federal Arbitration Act (AFAA@). See 9 U.S.C. __ 1B16 (West 1999); see Am. Med. Techs., Inc. v. Miller, 149 S.W.3d 265, 269 (Tex. App.CHouston [14th Dist.] 2004, no pet.). In contrast, an interlocutory appeal is the appropriate mechanism to challenge a denial of arbitration when an arbitration provision is governed by the Texas General Arbitration Act (ATAA@). Tex. Civ. Prac. & Rem. Code Ann. _ 171.098; see Am. Med. Techs., Inc., 149 S.W.3d at 269.[1] When the FAA applies, it preempts the TAA and governs the dispute. Am. Med. Techs., Inc., 149 S.W.3d at 269.

The FAA applies to all suits in state or federal court when the dispute concerns a Acontract evidencing a transaction involving commerce.@ See 9 U.S.C. __ 1B2; Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269B70 & n.6 (Tex. 1992). The parties do not dispute that relator, an Arkansas corporation with its principal place of business in Arkansas, contracted with a Texas resident for representation in a sales territory located exclusively within Texas; relator manufactured its products in Arkansas and shipped them across state lines to Texas customers; and relator billed Texas customers from Arkansas. Because these transactions that form the basis of this suit involve interstate commerce, the FAA applies and the proper procedural posture for this suit is the mandamus proceeding. See Jack B. Anglin Co., 842 S.W.2d at 270; Am. Med. Techs., Inc., 149 S.W.3d at 269; Stewart Title Guar. Co. v. Mack, 945 S.W.2d 330, 333 (Tex. App.CHouston [1st Dist.] 1997, writ dism=d w.o.j.).

Having determined that the TAA does not govern this dispute, we dismiss the interlocutory appeal.

After reviewing relator=s petition and the mandamus record, we hold relator has not established entitlement to a writ of mandamus. See Tex. R. App. P. 52.8. Accordingly, relator=s petition is denied.

PER CURIAM

Appeal Dismissed; Petition for Writ of Mandamus Denied and Memorandum Opinion filed December 21, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

[1] Relator has alternatively filed an interlocutory appeal in the event the TAA were found to apply.