Fleming Companies, Inc., et al. v. David's Supermarkets, Inc.--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-97-010-CV

FLEMING COMPANIES, INC., ET AL.,

Appellants

v.

DAVID'S SUPERMARKETS, INC.,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 246-93

MEMORANDUM OPINION

David's Supermarkets, Inc., (hereafter David's) brought suit in August 1993 against Fleming Companies, Inc., (hereafter Fleming) for breach of contract, fraud, and deceptive trade practices, all charges stemming from alleged violations of an agreement between the two whereby Fleming was to supply David's with merchandise to be sold to the general public at its chain of supermarkets in Texas. The case was tried before a jury, which returned a substantial verdict in David's favor. The trial court signed the judgment on April 12, 1996.

On May 10, 1996, Fleming filed a motion for new trial, alleging that the trial judge had been biased throughout the litigation because he had a business relationship with one of the principal shareholder's in David's. After the motion was filed, the trial judge, in response to a motion requesting same, recused himself, and the Honorable B.B. Schraub, Presiding Judge for the Third Administrative Judicial Region, assigned the Honorable C.W. Duncan, Senior District Judge for the 27th District Court, to pass on the motion for new trial. On June 24, Judge Duncan granted the motion and vacated the judgment.

Before a second trial began, Fleming on October 15, 1996, filed a motion to compel arbitration, contending that the parties had an agreement that they would attempt to settle any disputes by arbitration before resorting to the courts. In a response filed November 4, David's made essentially two arguments: (1) that Fleming had waived any right to arbitrate that it may have had by waiting over three years from the date the lawsuit was initially filed before seeking arbitration, and (2) that the arbitration clause Fleming relied upon in its motion was contained in an extraneous 1992 agreement between the parties, whereas the 1989 agreement on which suit was brought contains no arbitration provision. Judge Duncan denied the motion to compel arbitration on December 11, 1996, without specifying his reason or reasons for doing so.

On December 31, 1996, Fleming gave notice to the trial court that it intended to seek an interlocutory appeal of the order denying the motion to compel arbitration, and Fleming perfected its appeal on that day by filing a $1,000 cash deposit in lieu of bond.

On January 23, 1997, David's filed in this court a motion to dismiss Fleming's interlocutory appeal for want of jurisdiction. In the motion, David's reasserted its position that the only contract at issue between the parties was their 1989 agreement, which lacked an arbitration provision, and therefore any arbitration clause contained in their 1992 agreement was irrelevant. Assuming arguendo that the 1992 arbitration clause was applicable, however, David's then contended that it was governed by the Federal Arbitration Act, 9 U.S.C.A. 1-14 (West 1970 & Supp. 1996), under which the denial of a motion to compel arbitration may not be appealed interlocutorily.

On January 29, 1997, Fleming filed both a response to the motion to dismiss and a petition for a writ of mandamus against Judge Duncan, entreating this court to order him to send the case to arbitration. In its response to the motion to dismiss, Fleming did not affirmatively contest the grounds upon which David's sought to have the interlocutory appeal dismissed. Instead, it explained that the arbitration clause contained in the 1992 agreement may be governed both by the Federal Arbitration Act and the Texas General Arbitration Act, Tex. Civ. Prac. & Rem. Code Ann. 171.001-.023 (Vernon Pamph. 1997), pointing out that one must proceed by mandamus to seek review of the denial of a motion to arbitrate under federal law, but may seek an interlocutory appeal if the agreement is governed by Texas law. Thus, its dual proceedings were an attempt to make certain that its complaint was heard by this court in either case. See Jack B. Anglin. Co., Inc. v. Tipps, 842 S.W.2d 266, 271-72 (Tex. 1992) (orig. proceeding).

The arbitration clause in the 1992 agreement reads, in full:

Disputes; Arbitration. The parties agree that all disputes between them relating to this Agreement are to be resolved by arbitration as provided in this Agreement. This agreement to arbitrate will survive the rescission or termination of the Agreement. All arbitration will be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association except as may be provided for in this Agreement. The panel used will be selected from, if available, the "Food Industry Panel" employed by the American Arbitration Association and the decision of the arbitrators will be final and binding on all parties. All arbitration will be undertaken pursuant to the Federal Arbitration Act, where applicable, and the decision of the arbitrators will be enforceable in any court of competent jurisdiction.

(Emphasis by italics added.)

It is clear by the wording of the arbitration clause that the 1992 agreement is subject to the Federal Arbitration Act. Even assuming that the 1992 agreement applies to the controversy between the parties, any agreement between them to arbitrate their dispute is governed by the federal legislation. See Metropolitan Property and Liab. Ins. Co. v. Bridewell, 933 S.W.2d 358, 361 (Tex. App. Waco 1996, orig. proceeding). // In Texas, a party may not seek appellate review of the denial of a motion to compel arbitration under the Federal Arbitration Act by interlocutory appeal. Jack B. Anglin, 842 S.W.2d at 272; see Metropolitan Property, 933 S.W.2d 358, 361. The only remedy is a petition for a writ of mandamus. Id.

Unless permitted by statute, Texas courts have no jurisdiction to consider an interlocutory appeal. Jack B. Anglin, 842 S.W.2d at 272; see Tex. Civ. Prac. & Rem. Code Ann. 51.014 (Vernon Supp. 1997). As there is no statutory authorization for Fleming's interlocutory appeal, we have no jurisdiction over the cause. See Jack B. Anglin, 842 S.W.2d at 272; D. Wilson Constr. Co. v. McAllen Indep. Sch. Dist., 848 S.W.2d 226, 228 (Tex. App. Corpus Christi 1992, writ dism'd w.o.j.).

Therefore, David's motion to dismiss for want of jurisdiction is granted, and the appeal is dismissed.

PER CURIAM

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Dismissed for want of jurisdiction

Opinion delivered and filed February 26, 1997

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