in Re Moises and Olga Jacquez, Relators

NO. 07-01-0226-CV IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO PANEL A SEPTEMBER 28, 2001 ______________________________

IN RE: MOISES JACQUEZ AND OLGA JACQUEZ, RELATORS1

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Relators Moises Jacquez and Olga Jacquez seek a writ of mandamus directing respondent, the Honorable Ron Enns, to vacate his order abating their lawsuit and ordering that claims which relators asserted in a lawsuit against Jim Walters Homes, Inc., be arbitrated. We deny the application.

BACKGROUND

In February, 1999, relators entered into a contract with Real Party in Interest Jim Walters Homes, Inc., (Jim Walters) for construction of a house in Dumas, Texas. A separate arbitration agreement was included as part of the contract. In August, 2000, relators filed suit in the 69th District Court of Moore County, Texas, claiming that they had been damaged by actions and omissions of Jim Walters in constructing the house.

Jim Walters filed a Motion to Abate/Stay Litigation and Compel Arbitration and Answer. By its motion, Jim Walters asserted that relators had agreed to arbitrate any claims arising out of or relating to the contract.

Relators did not contest signing an arbitration agreement, nor did they assert that their dispute was not within the scope of the agreement. Relators responded that they were illiterate, unable to read the arbitration agreement, did not remember signing the arbitration agreement, no one explained the agreement to them, the arbitration agreement was procured by fraud or constructive fraud, and that it would be unconscionable if the arbitration agreement were to be enforced. Relators filed affidavits in support of their response. Their affidavits set out that (1) relators signed the arbitration agreement along with other documents presented to them by representatives of Jim Walters, (2) neither of them remembered signing the arbitration agreement, (3) neither of them could read English, they did not have the agreement read to them, and they did not have the agreement explained to them by Jim Walters, and (4) Jim Walters knew that neither relator could read English, that each could only understand a little English, and that relators were relying on what the Jim Walters representative said the documents contained. The affidavits additionally set out that neither relator was told that by signing the arbitration agreement they were giving up their right to sue Jim Walters while Jim Walters could still sue them, and that the first time relators became aware that they had signed documents which gave up the right to sue was when their attorney’s legal assistant explained the documents to them. Olga stated in her affidavit that she distinctly remembered being told by a Jim Walters representative that if she ever had any problem with Jim Walters or the house, she had the right to file a lawsuit and take Jim Walters to court.

On November 27, 2000, the trial court held a hearing on Jim Walters’ motion to abate and order arbitration. No evidence was presented at the hearing other than the affidavits of relators.2 The motion was granted. Respondent ordered the lawsuit stayed and ordered the parties to arbitrate the entire dispute.

Relators seek a writ of mandamus3 directing respondent to rescind or vacate his order granting the motion to abate and ordering arbitration. Relators assert that the issue before us is very narrow: when evidence is presented that the arbitration clause itself was entered into because of fraudulent inducement, the question of fraudulent inducement must be adjudicated in the judicial system, and not arbitrated.4

LAW

A writ of mandamus is an extraordinary remedy that will issue (1) only to correct a clear abuse of discretion or the violation of a duty imposed by law, when (2) there is no other adequate remedy by law. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994). It is the relator’s burden to show entitlement to issuance of the writ being requested. See generally Johnson v. Fourth District Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).

The trial court’s ruling on a motion to compel arbitration is reviewed for abuse of discretion. See Oakwood Mobile Homes, 987 S.W.2d at 574; Jack B. Anglin Co.,842 S.W.2d at 271; In re Koch Indus., Inc., 49 S.W.3d 439, 444 (Tex.App.--San Antonio 2001, orig. proceeding); In re Rangel, 45 S.W.3d 783, 786 (Tex.App.--Waco 2001, orig. proceeding). The abuse of discretion standard contains both a factual and legal component. See Walker, 827 S.W.2d at 839-40. In order to establish that a trial court abused its discretion in resolving a factual issue, a party must establish that the "trial court could reasonably have reached only one decision." Id. In regard to analyzing the law or application of the law to the facts, a trial court has no discretion, and must both properly analyze and apply the law to the facts. Id. at 840. Failure to either correctly analyze or apply the law will constitute an abuse of discretion. Id.

To establish under Texas law5 that an arbitration agreement was entered into because of fraudulent inducement, a party must prove that (1) a material misrepresentation was made, (2) it was false, (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion, (4) the speaker made it with the intention that it should be acted upon by the party, (5) the party acted in reliance upon the misrepresentation in entering into the arbitration agreement, and (6) the party thereby suffered injury. 6 See In re FirstMerit Bank, N.A., Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997); In re H.E. Butt Grocery Co., 17 S.W.3d 360, 372 (Tex.App.--Houston [14th Dist.] 2000, orig. proceeding); In re Delta Homes, Inc., 5 S.W.3d at 239.

ANALYSIS

The affidavit of relator Moises sets out that he did not remember signing the arbitration agreement. His affidavit avers that he was not told anything about the arbitration agreement one way or the other by Jim Walters’ representatives. The affidavit does not present evidence that Moises relied on a false representation made by Jim Walters or its representative in signing the arbitration agreement.

Olga’s affidavit contains the same substantive statements as Moises’ affidavit. Her affidavit also includes reference to a statement made to her by the Jim Walters representative to the effect that if she had problems with Jim Walters or the house, she could take Jim Walters to court. Her affidavit does not assert that the statement was made before she signed the arbitration agreement. Nor does her affidavit claim that she relied on the statement in signing the agreement to arbitrate.

Even assuming, arguendo, that the statement to Olga by a Jim Walters representative was false, a conclusion disputed by Jim Walters,7 Olga’s affidavit does not evidence reliance on such statement in entering into the arbitration agreement. Merely proving the statement made by Jim Walters and Olga’s execution of the arbitration agreement, without more, does not evidence or raise an inference that Olga relied on the statement in executing the arbitration agreement.

Because neither Moises’ nor Olga’s affidavits presented evidence that they entered into the arbitration agreement in reliance on false misrepresentations made by representatives of Jim Walters, relators did not offer proof in the trial court of all the elements of fraudulent inducement. See In re FirstMerit Bank, N.A., 2001 WL 660866 *5; Oakwood Mobile Homes, 987 S.W.2d at 574; In re H.E. Butt Grocery Co., 17 S.W.3d at 372-73; In re Delta Homes, Inc., 5 S.W.3d at 239. In the absence of proof that they relied on material false misrepresentations in executing the arbitration agreement, relators have not proved that the trial court abused its discretion in ordering arbitration. See Oakwood Mobile Homes, 987 S.W.2d at 574; In re H.E. Butt Grocery Co., 17 S.W.3d at 372-73; In re Delta Homes, Inc., 5 S.W.3d at 239. Thus, mandamus will not issue.

CONCLUSION

Having concluded that relators have not proved an abuse of discretion by the trial court, we deny the application for writ of mandamus.

Phil Johnson Justice

Do not publish.