












 
 
 
 
                                    NUMBER
13-04-193-CV
                                 COURT OF
APPEALS
                     THIRTEENTH DISTRICT OF
TEXAS
                         CORPUS CHRISTI B EDINBURG
 
STEVE CHILDERS,                                                                           Appellant,
                                                             v.
ADVANCED FOUNDATION REPAIRS,                                             Appellee.
 
 
                    On appeal from the 105th District
Court
                                        of
Kleberg County, Texas.
 
 
 
                                M
E M O R A N D U M   O P I N I O N
 
     Before Chief Justice
Valdez and Justices Hinojosa and Rodriguez
 
      Opinion by Chief
Justice Valdez
 
 
 




Appellant, Steve Childers, attempts to bring an
interlocutory appeal from a trial court order granting appellee=s motion to dismiss and to compel arbitration
pursuant to the arbitration provision in the contract between the parties.  Because we do not have jurisdiction to hear
the appeal, we dismiss.
I. Facts
Appellant originally brought suit against Advanced
Foundation Repair (AFR) for claims arising out of a contract to perform
foundation repair on appellant=s home.  The
contract included a provision requiring the arbitration of any dispute arising
under the warranty.  The arbitration
provision specifically provided: 
In the event that Owner and Company cannot agree
that the movement in the foundation has been controlled and settlement is
within the tolerances specified above, it is specifically agreed by acceptance
of this warranty that the matter shall be determined by binding arbitration as
follows: . . . Arbitration shall be conducted in accordance with the rules
prevailing of the American Arbitration Association or any successor
thereto.  
 
Citing this clause, AFR=s first motion to dismiss sought to invoke the
provisions of the Federal Arbitration Act (FAA), 9 U.S.C. _ 1, et seq. (2005), as its authority to compel
appellant to submit the claims to arbitration. 
Appellant asserted below, and asserts now on appeal, that neither the
FAA or, in the alternative, the Texas General Arbitration Act (TGAA) apply to
this dispute.
The parties do not dispute the existence of an
arbitration provision in the contract. 
Therefore, there are only two determinations we need to make in order to
resolve this appeal: (1) whether appellant seeks appeal pursuant to FAA or TGAA
provisions; and (2) whether AFR properly invoked the provisions of the
FAA.  
II. Jurisdiction




When a disputed claim is subject to the FAA, Texas
courts apply state rules of procedure and federal substantive law.  See Jack B. Anglin Co., Inc. v. Tipps,
842 S.W.2d 266, 268-70 (Tex. 1992) (orig. proceeding); see also
Prudential-Bache Sec., Inc. v. Garza, 848 S.W.2d 803, 806 (Tex. 1993).  Under Texas procedure, appeals may be had
only from final orders or judgments.  Tex. Civ. Prac. & Rem. Code Ann. _ 51.014 (Vernon Supp. 2004-05); Anglin, 842
S.W.2d at 272.  Interlocutory orders may
be appealed only if permitted by statute. 
Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985)
(orig. proceeding).  A final judgment is
one which disposes of all legal issues between all parties.  Anglin, 842 S.W.2d at 272; Hinde v.
Hinde, 701 S.W.2d 637, 639 (Tex. 1986).
Although an action to compel arbitration under the
FAA may be brought in both state and federal court, the provisions of the FAA
do not authorize an interlocutory appeal from a state court order denying or
granting a motion to compel arbitration. 
See Anglin, 842 S.W.2d at 271-72; Turboff v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 867 F.2d 1518, 1521 (5th Cir. 1989); Merrill
Lynch, Pierce, Fenner & Smith, Inc. v. Hughes, 809 S.W.2d 679, 680
(Tex. App.BCorpus Christi 1991, writ dism=d).  Texas, on
the other hand, does permit such action pursuant to the TGAA.  See Tex.
Civ. Prac. & Rem. Code Ann.  ' 171.017 (Vernon Supp. 2004-05).  This means for our purposes that if the FAA
applies to an arbitration dispute, we do not have jurisdiction to review via an
interlocutory appeal a motion to compel arbitration, while if the TGAA applies,
we may entertain such an appeal.  An
arbitration clause governed by the FAA is instead properly reviewed via a writ
of mandamus proceeding.  See EZ Pawn
v. Mancias, 934 S.W.2d 87, 88 (Tex. 1996) (per curiam).




Appellant contends that the affidavit submitted in
support of AFR=s motion to dismiss cannot properly invoke the
FAA.  We disagree.  The FAA "applies to all suits in state
or federal court when the dispute concerns 'a contract evidencing a transaction
involving commerce.'"   See
Anglin, 842 S.W.2d at 269-70. There is a strong liberal federal policy in
favor of arbitration, Moses H. Cone Mem=l
Hosp. v. Mercury Constr. Co., 460
U.S. 1, 24 (1983), and Texas courts have dictated that the FAA should be read
broadly to extend as far as the Commerce Clause of the U.S. Constitution will
reach.  See In Re First Merit Bank,
N.A. f/k/a Signal Bank N.A. & Mobil Consultants, Inc., 52 S.W.3d 749,
754 (Tex. 2001).  Therefore, Acommerce@ under the FAA must be broadly construed.  Moses, 460 U.S. at 24.  It is not limited to interstate shipment of
goods, but also includes all contracts relating to interstate
commerce.  See Prima Paint v. Flood
& Conklin Mfg. Co., 388 U.S. 395, 401 (1967) (emphasis added).   If any aspect of the contract involved or
related to interstate commerce, the FAA, and not the TGAA, governs the
dispute.  See Serv. Corp. Int'l v.
Lopez, 162 S.W.3d 801, 807 (Tex. App.BCorpus Christi 2005, no pet.).  This is typically established through an
affidavit or other evidence from an involved party attesting to interstate
aspects of the contract.  See id.;
Lost Creek Mun. Util. Dist. v. Travis Indus. Painters Inc., 827 S.W.2d
103, 105 (Tex. App.BAustin 1992, writ denied) (paint and epoxy
manufactured in another state may be evidence of interstate commerce). 
III. The Affidavit




An affidavit purporting to invoke the FAA may be
proper evidence in summary judgment proceedings so long as it is clear,
positive, direct, otherwise credible, free from contradictions and
inconsistencies, and could have been readily controverted.  See Trico Tech. Corp. v. Montiel, 949
S.W.2d 308, 310 (Tex. 1997).  ACould have been readily controverted@ does not mean the evidence could have been easily
and conveniently rebutted, but rather indicates that it could have been
effectively countered by opposing evidence. 
Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989).  Although the proceeding below was not decided
upon motion for summary judgment, logic insists that contested issues decided
summarily should follow similar rules.  See
Anglin, 842 S.W.2d at 269 (discussing rules prescribed to summary
determinations).
Here, AFR submitted to the trial court an affidavit
listing materials and items that involved or related to interstate
commerce.  Appellant complains that none
of the materials or items listed in the affidavit by AFR=s agent were sufficiently identified in any respect
to enable a proper investigation, and thus was not susceptible of being
controverted.  However, ample discovery
tactics are available to discover this information.  Appellant made no attempt at discovery though
AFR=s affidavit regarding the interstate aspects of the
contract could have been readily controverted. 
See, e.g., Trico, 949 S.W.2d at 310 (affidavit could have been
readily controverted if in discovery opposing party had inquired into similar
discharge instances); Crooks v. Moses, 138 S.W.3d 629, 642 (Tex. App.BDallas 2004, no writ) (trial court could properly
rely on deposition testimony where no attempt at discovery to controvert had
been made); Double Diamond, Inc. v. Van Tyne, 109 S.W.3d 848, 853 (Tex.
App.BDallas 2003, no writ) (statements in affidavit could
have been effectively countered by opposing testimony); Eckels v. Davis,
111 S.W.3d 687, 698 (Tex. App.BFort Worth 2003, pet. denied) (deposition could have
effectively countered opposing evidence).




We conclude that the affidavit testimony of AFR=s agent established that interstate commerce was
involved and thus, properly invoked the provisions of the FAA.  Therefore, we determine that the trial court=s ruling on the motion to dismiss and compel
arbitration relied on the authority of the FAA. 
As stated above, we may only review an FAA-related decision to compel
arbitration through a writ of mandamus and not through an interlocutory appeal
such as this.  Appellant failed to file a
petition for a writ of mandamus pursuant to the FAA in order to properly invoke
our jurisdiction and contest the trial court=s
order, and instead attempted to bring an interlocutory appeal only.  Accordingly, we must dismiss this appeal for
lack of jurisdiction.   
IV. Conclusion
We dismiss this appeal for lack of
jurisdiction.                    
    
 
 
 
                                           
Rogelio Valdez,
Chief Justice
 
 
 
Memorandum Opinion delivered and filed
this 18th day of August, 2005.

