Austin Commercial Contractors, L.P. v. Carter & Burgess, Inc

In Austin Commercial Contractors, L.P. v. Carter & Burgess, Inc., 347 S.W.3d 897 (Tex. App.--Dallas 2011, pet. denied), the Court faced a somewhat similar situation except we were not dealing with competing motions to compel arbitration. Austin Commercial, the general contractor on a construction project, contracted with Carter & Burgess for architectural services. After a dispute arose with Carter & Burgess, Austin Commercial moved to compel arbitration before the Civilian Board of Contract Appeals (CBCA) under its prime contract with the project owner. The subcontract between Austin Commercial and Carter & Burgess required arbitration pursuant to the dispute resolution procedures in the prime contract, but in the absence of such procedures, all disputes would be resolved by AAA arbitration. Id. Carter & Burgess did not seek arbitration; it opposed arbitration before either forum, arguing the CBCA did not have jurisdiction and Austin Commercial waived arbitration by engaging in litigation before requesting arbitration. The trial court granted the motion to compel in part and denied it in part. The court compelled arbitration, but before the AAA rather than the CBCA. The Court concluded we did not have appellate jurisdiction over this order under FAA section 16 and section 51.016 of the civil practice and remedies code. However, the Court also concluded that Austin Commercial was entitled to mandamus relief from the order compelling arbitration before the AAA. The Court determined Austin Commercial lacked an adequate remedy by appeal and the trial court clearly abused its discretion by compelling arbitration before AAA when the subcontract required arbitration according to the dispute resolution procedures in the prime contract. Id.