in Re Olshan Foundation Repair Company of Dallas, LLC D/B/A Olshan Foundation Repair Company ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00025-CV

In re Olshan Foundation Repair Company of Dallas, LLC d/b/a Olshan Foundation Repair Company

Original Proceeding

OpinioN

Jason and Jacqueline Seay sued Olshan Foundation Repair Company of Dallas for breach of warranty, DTPA violations, and negligence arising out of foundation repairs made by Olshan.  After the trial court denied Olshan’s motion to compel arbitration, Olshan now petitions us for a writ of mandamus,[1] citing the Federal Arbitration Act (FAA) and providing an evidentiary affidavit in support of the FAA’s applicability.  9 U.S.C.A. §§ 1-16 (West 1999). Because Olshan admittedly (Relator’s Petition at p. 20) did not invoke the FAA or raise its applicability in the trial court,[2] we deny the petition regarding Olshan’s arbitration motion.  See In re Neatherlin Homes, Inc., 160 S.W.3d 82, 83 (Tex. App.—Waco 2004, orig. proceeding) (citing In re L & L Kempwood Assoc., L.P., 9 S.W.3d 125, 127 (Tex. 1999) (invoking the FAA), and In re American Optical Corp., 988 S.W.2d 711, 714 (Tex. 1998) (raising argument in trial court)).

            Olshan also asked the trial court to dismiss the Seays’ claims under the Residential Construction Liability Act (RCLA) because the Seays allegedly failed to give Olshan proper pre-suit notice.  See Tex. Prop. Code Ann. §§ 27.001 - .007 (Vernon Supp. 2005).  The trial court also denied that motion, and Olshan seeks mandamus on that ruling.  The Seays point out:  (1) neither the current RCLA nor its predecessor creates a cause of action that must be pled; (2) Olshan received adequate pre-suit notice from the Seays; (3) abatement, not dismissal, would be the proper remedy under RCLA; and (4) Respondent properly found that the pre-suit notice warranted denial of Olshan’s motion to dismiss.  We agree with the Seays; thus, we deny the petition seeking to require Respondent to dismiss the underlying suit.

            For the above reasons, we deny Olshan’s petition for writ of mandamus.

                                                                                    PER CURIAM

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

            (Chief Justice Gray dissenting)

            (Justice Vance concurring)

Petition denied

Opinion delivered and filed June 21, 2006

[OT06]

---

[1]               The Texas Arbitration Act provides for an interlocutory appeal of the denial of a motion to compel arbitration. Tex. Civ. Prac. & Rem. Code Ann. § 171.098 (Vernon 2005).  However, “[a] party denied the right to arbitrate under the Federal Arbitration Act by a state court has no adequate remedy by appeal and is entitled to mandamus relief to correct a clear abuse of discretion.”  In re L & L Kempwood Assoc., L.P., 9 S.W.3d 125, 128 (Tex. 1999) (orig. proceeding).

                Olshan filed a direct interlocutory appeal of the trial court’s denial of its motion, but Olshan voluntarily agreed to its dismissal.  See Olshan Foundation Repair Co. of Dallas, LLC v. Seay, No. 10-06-00010-CV, 2006 WL 727758, at *1, 2006 Tex. App. LEXIS 2202, at *1 (Tex. App.—Waco Mar. 22, 2006, no pet.) (mem. op.).

[2]               Olshan is correct that we may receive affidavits to ascertain matters of fact relevant to jurisdiction.  See Tex. Gov’t Code Ann. § 22.220(c) (Vernon 2004); see, e.g., Jones v. Griege, 803 S.W.2d 486, 488 (Tex. App.—Dallas 1991, no writ).  But that is not what Olshan is attempting to do.  Olshan’s FAA argument raises a substantive legal theory (arbitrability under federal law) with supporting evidence that should have been, but was not, presented to the trial court.  “We do not consider arguments in a petition for writ of mandamus which were not presented to the trial court.”  In re Chu, 134 S.W.3d 459, 463 (Tex. App.—Waco 2005, orig. proceeding) (Gray, C.J.) (citing In re American Optical Corp., 988 S.W.2d 711, 714 (Tex. 1998) (orig. proceeding)).  Notably, the dissent ignores this well-established principle in mandamus practice.