Mandamus Conditionally Granted; and Opinion Filed October 30, 2013.




                                           S   In The
                                   Court of Appeals
                            Fifth District of Texas at Dallas
                                        No. 05-13-01340-CV

                     IN RE SEVEN HILLS COMMERCIAL, LLC, Relator

                    Original Proceeding from the County Court at Law No. 4
                                     Dallas County, Texas
                             Trial Court Cause No. CC-12-06312-D

                                MEMORANDUM OPINION
                            Before Justices Bridges, Lang-Miers, and Lewis
                                       Opinion by Justice Lewis
        Relator filed this mandamus proceeding after the trial court signed an order requiring it to

dismiss an arbitration proceeding. In order to obtain mandamus relief, relator must show both

that the trial court has abused its discretion and that it has no adequate appellate remedy. In re

Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer,

827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). Relator has met this burden.

        The trial court found that the parties did not have an agreement to arbitrate, stayed the

arbitration filed on relator’s behalf and ordered relator and others to cause that arbitration to be

dismissed. “A court may stay an arbitration commenced or threatened on application and a

showing that there is not an agreement to arbitrate.” TEX. CIV. PRAC. & REM. CODE ANN. §

171.023 (West 2011). However, nothing in this section, or elsewhere, gives a trial court the

power to require dismissal of an arbitration. We conclude that it was an abuse of discretion for

the trial court to do so.
       Accordingly, we conditionally grant relator’s petition for writ of mandamus. A writ will

issue only in the event the trial court fails to vacate the portions of its September 11, 2013 order

granting first amended application to stay and dismiss arbitration and denying plaintiff’s motion

to compel arbitration and stay/abate or, alternatively, to compel arbitration and dismiss and of its

September 18, 2013 amended order that require dismissal of the arbitration.




                                                      /David Lewis/
                                                      DAVID LEWIS
                                                      JUSTICE

131340F.P05




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