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 2004-12

in Re Mexican Restaurant, Inc., D/B/A Casa Ole' Restaurant, Diamond Vinson, and Jerry McCord ( 2004 )


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  •                                                              11th Court of Appeals

                                                                      Eastland, Texas

                                                                 Memorandum Opinion

     

    In re Mexican Restaurants, Inc. d/b/a Casa Ole´ Restaurant,

    Diamond Vinson, and Jerry McCord

     

    Nos. 11-04-00154-CV & 11-04-00155-CV -- Original Mandamus Proceedings

     

     

    Elizabeth Kamali and Tab Kamali, as next friend of Priscilla Kamali, filed suit against Mexican Restaurants, Inc. d/b/a Casa Ole´ Restaurant, Diamond Vinson, and Jerry McCord alleging sexual harassment, assault and battery, illegal restraint, as well as other tort and statutory claims. In each cause number, the trial court denied the Restaurant=s motion to reconsider compelling arbitration.  The Restaurant challenges the trial court=s orders by writ of mandamus.  We deny the writs of mandamus.

    Elizabeth Kamali and Priscilla Kamali both signed an arbitration agreement with the Restaurant as part of an employment agreement. The arbitration agreement provided that the Federal Arbitration Act[1] shall apply to all disputes arising under the agreement.  Relief from a denial of arbitration under the Federal Arbitration Act must be pursued by mandamus.  EZ Pawn Corporation v. Mancias, 934 S.W.2d 87, 91 (Tex.1996).  Mandamus will issue only to correct a clear abuse of discretion when there is no adequate remedy by appeal.  See Mitchell Energy Corporation v. Ashworth, 943 S.W.2d 436, 437 (Tex.1997); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). A trial court abuses its discretion when it does not follow guiding rules and principles and reaches an arbitrary and unreasonable decision.  Walker v. Packer, supra.

    At the time they signed their respective arbitration agreements with the Restaurant, Elizabeth was 17 years old and Priscilla was 15 years old.  With the exception of a limited type of contract, the contract of a minor whose disability has not been removed is not void, but voidable at the minor=s instance.  Pioneer Casualty Company v. Bush, 457 S.W.2d 165, 168 (Tex.Civ.App. ‑ Tyler 1970, writ ref=d n.r.e).  A Achild@ or Aminor@ is defined as a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed.  TEX. FAM. CODE ANN. ' 101.003(a)  (Vernon 2002).  Elizabeth and Priscilla were minors at the time they entered into the arbitration agreement with the Restaurant.  The Restaurant contends that, although Elizabeth and Priscilla were minors at the time they signed the arbitration agreement, they had been emancipated.

    A minor may petition to have disabilities removed for limited or general purposes.  TEX. FAM. CODE ANN. ' 31.001 (Vernon 2002).  The record does not indicate that the disabilities of either Elizabeth or Priscilla were removed by a court order pursuant to Section 31.001.

    Whether a minor has been emancipated is ordinarily a fact question to be determined from the statements and conduct of the parent and other surrounding circumstances.  Durham v. I. C. T. Insurance Co., 283 S.W.2d 413, 415 (Tex.Civ.App. ‑ Dallas 1955, writ dism=d).  Elizabeth and Priscilla lived together in an apartment after their family was evicted from their previous residence for failure to pay the rent.  Elizabeth and Priscilla paid the rent for their apartment and also helped support their father and stepmother.  Elizabeth has a son, and she is the sole provider of support for her son.  Emancipation, either express or implied, constitutes only an agreement by the parent to relinquish his parental rights to control the minor and to the minor=s services and earnings. Pioneer Casualty Co. v. Bush, supra.  The record does not establish that Elizabeth and Priscilla=s father relinquished his rights to control them or their earnings.

    Even though Elizabeth and Priscilla lived apart from their father in their own apartment, they continued to turn their paychecks over to him, and they received an allowance.  Elizabeth stated that her father did not relinquish control over her.  Although Elizabeth and Priscilla were able to provide for their own support, their father continued to exercise control over them and their earnings.  The record does not show that Elizabeth and Priscilla were emancipated.

    The contracts of a minor are voidable; and the minor may, within a reasonable time after reaching his majority, set aside such contracts.  Prudential Building & Loan Ass=n v. Shaw, 26 S.W.2d 168, 171 (Tex.1930); see also Dairyland County Mutual Insurance Company of Texas v. Roman, 498 S.W.2d 154, 158 (Tex.1973). Elizabeth and Priscilla disaffirmed their respective employment contracts with the Restaurant by ending their employment and filing suit against the Restaurant.  Elizabeth and Priscilla further disaffirmed their arbitration agreements by seeking to avoid arbitration and proceed to a trial of the cause.[2]  See Hogue v. Wilkinson, 291 S.W.2d 750 (Tex.Civ.App. - Texarkana 1956, no writ). The Restaurant has not shown that the trial court clearly abused its discretion in denying its motions to reconsider compelling arbitration.

    The Restaurant=s petitions for writ of mandamus are denied.

     

    JIM.R.WRIGHT

    JUSTICE

     

    December 2, 2004

    Not designated for publication.  See TEX.R.APP.P. 47.2(a).

    Panel consists of:  Arnot, C.J., and

    Wright, J., and McCall, J.


    [1]9 U.S.C. ' 1 et seq.

    [2]By letter dated July 30, 2002, Elizabeth and Priscilla notified the Restaurant that they would not agree to arbitration and that they sought to disaffirm the arbitration agreement. This letter is contained as an appendix to the brief of Elizabeth and Priscilla and is not part of the record on appeal.