                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-14-00100-CV


                       IN RE WYATT SERVICES, L.P., RELATOR


                                ORIGINAL PROCEEDING

                                        April 4, 2014

                  ON PETITION FOR WRIT OF MANDAMUS
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Wyatt Services, L.P. (Wyatt) has filed for a writ of mandamus wherein it asks that

we “issue a writ of mandamus directing the Honorable Ana Estevez, [251st] District

Court, [Potter] County, Texas, to vacate the order staying this case and compelling

arbitration.” Wyatt also requests that we instruct the trial court to “finally decide [it’s]

claims for equitable relief prior to any referral order.” We conditionally grant the writ of

mandamus in part and deny it in part.

       Background

       Wyatt entered into a contract with Northwest Texas Healthcare System

(Northwest) on April 1, 2004, under which agreement Wyatt provided services for

indigent healthcare. The initial contract term was five years, and at the expiration of that

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period, the parties could renegotiate and extend the accord for an additional three

years.1       Among the many provisions of the accord there also appeared several

pertaining to the resolution of contractual disputes. They provided that:

        7.18.1 Conciliation and Mediation. If a dispute among the Parties relating
        to this Agreement is not resolved within 10 business days from the date
        that any Party to this Agreement has notified the others that such dispute
        exists, such dispute shall be submitted jointly for mediation according to
        the mediation rules of the American Health Lawyers Association Dispute
        Resolution Committee using a qualified mediator familiar with health care
        matters. If such representatives are unable to resolve the dispute within 15
        days from the date that it is first presented to them, then such dispute shall
        be referred to binding arbitration. The parties will share the cost of
        mediation equally.

        7.18.2 Binding Arbitration. Any dispute under this Agreement that remains
        unresolved following efforts to reconcile the dispute shall be submitted to
        arbitration according to the Arbitration Rules of the American Health
        Lawyers Association ("AHLA"). Any decision made by the Arbitrator or the
        Board of Arbitration (as applicable) (either prior to or after the expiration of
        such 30-day period) shall be final, binding and conclusive on the parties to
        the arbitration, and each Party to the arbitration shall be entitled to enforce
        such decision to the fullest extent permitted by law and entered in any
        court of competent jurisdiction. The fees and expenses of the arbitration
        process shall be borne by the unsuccessful Party.

        7.18.3 Equitable Relief. Nothing in this paragraph is intended to preclude
        either Party from seeking a claim or claims for equitable relief, including,
        without limitation, claims for specific performance, a preliminary injunction,

        1
            The provisions specifying the term and its extension state:

         5.1 Term. This Agreement shall be effective as of the Effective Date and shall continue in effect
for an initial Term of five (5) years. Upon mutual agreement, this Agreement shall be renewed for three (3)
year Subsequent Terms until and through the expiration of the Indigent Care Agreement between
[Northwest] and the Amarillo Hospital District, unless earlier terminated as provided in Section 5.2.

        and

         5.3 Termination After Initial or Subsequent Terms. Notwithstanding termination provisions as
outlined in Paragraph 5.2, the intent of the parties is to have an Agreement that continues through the
term of the ICA, allowing for annual renegotiation of financial terms . . . . [T]he Party seeking termination
will provide notification to the other Party no less than one hundred and eighty (180) days in advance. In
the event the Termination Event involves the Parties' inability to reach agreement related to financial
matters, termination will not occur until the Parties have exhausted the Dispute Resolution process
described in this Agreement.


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       or a temporary restraining order. Once the claims for equitable relief are
       finally decided, any and all remaining claims shall be submitted to
       arbitration pursuant to the terms of this agreement, and the Arbitrator shall
       be bound by the findings and rulings of the court on the claims for
       equitable relief.


       According to the record before us, the agreement was amended on April 1, 2008,

and extended to March 31, 2014. As the latter date approached, Wyatt discovered that

Northwest intended to forego renewal of the accord.          This discovery led it to sue

Northwest for breach of contract, specific performance, and injunctive relief. Thereafter,

Northwest moved to abate the proceedings and compel arbitration.             The trial court

convened a hearing upon the motion on February 18, 2014, and, subsequently, signed

an order granting the motion to “stay proceedings and compel arbitration.”             It also

“enjoin[ed] [sua sponte] the expiration of the . . . Agreement until the earlier of 180 days

from November 18, 2013, or a final decision in the . . . Arbitration.” The decision caused

Wyatt to petition this court for a writ of mandamus directing the trial court to set-aside

the February 18th order and allow the equitable claims to be tried before arbitration

occurs.

       Authority

       Whether a writ of mandamus should issue depends upon whether 1) the trial

court clearly abused its discretion in issuing the order and 2) the petitioner lacks an

adequate legal remedy by appeal. In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d

204, 207 (Tex. 2009) (orig. proceeding). Additionally, a trial court abuses its discretion if

it misinterprets or misapplies the law. In re Dep't of Family & Protective Servs., 273

S.W.3d 637, 642-43 (Tex. 2009) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833

840 (Tex. 1992).


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       Next, while the law favors arbitration, E. Tex. Salt Water Disposal Co. v. Werline,

307 S.W.3d 267, 271 (Tex. 2010), its availability depends upon the existence of a

contract mandating it. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.

2003). That is, arbitration is a creature of contract. In re Brown, No. 07-13-00025, 2013

Tex. App. LEXIS 13816, at *9 (Tex. App.—Amarillo November 7, 2013 orig.

proceeding). So, its existence of one’s right to pursue the extra-judicial procedure is

governed by the terms of the contract purporting to mandate it. More importantly, the

party seeking to compel arbitration must establish that the claim involved comes within

the scope of the agreement. See VSR Fin. Serv. v. McLendon, 409 S.W.3d 817, 827

(Tex. App.—Dallas 2013, no pet.) (stating that a party seeking to compel arbitration

must establish the existence of a valid, enforceable arbitration agreement and that the

claims at issue fall within that agreement's scope).

       With the foregoing rules in mind, we return to the contract at issue. That it

provided for arbitration is beyond question. Yet, the parties to it expressed that the duty

to arbitrate was not "intended to preclude either. . . from seeking a claim or claims for

equitable relief, including, without limitation, claims for specific performance, a

preliminary injunction, or a temporary restraining order." (Emphasis added). According

the words within this quotation their plain meaning, see In re Green Tree Servicing,

LLC, 275 S.W.3d 592, 598 (Tex. App.—Texarkana 2008, orig. proceeding) (stating that

the rules applicable to construing contracts apply to construing arbitration clauses; so,

we accord the words of the clause their plain meaning), leads us to conclude that

despite the arbitration clause, the parties remained free to pursue equitable claims and

remedies through the court system. And, when we consider the remaining verbiage



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contained in paragraph 7.18.3 of the contract at bar, we further conclude that the

demands for equitable relief, irrespective of their facial merit, must be "finally decided"

first and only then may arbitration proceed.

        Wyatt clearly sought equitable relief here.                   Again, it prayed for specific

performance of the contract and injunctive help. So, under the terms of the parties' very

own contract they had to be "finally decided" before any other claims could be sent to

arbitration. Yet, they were not.2 Instead, the trial court ordered the parties to go to

arbitration while the equitable claims remained unadjudicated.                  This decision deviated

from the law applicable to enforcing the parties' agreement and constituted a clear

abuse of discretion.

        Next, our Texas Supreme Court has stated that "the balance will generally tilt

toward reviewing orders compelling arbitration only on final appeal" rather than through

a mandamus proceeding.             In re Gulf Exploration, LLC, 289 S.W.3d 836, 843 (Tex.

2009); In re J.W. Res. Exploration & Dev., Inc., No. 07-09-00189-CV, 2009 Tex. App.

LEXIS 6676, at *6 (Tex. App.—Amarillo August 25, 2009) (orig. proceeding). Yet, it did

not foreclose the availability of mandamus relief in all situations where arbitration is

compelled. Indeed, it said that whether an appeal is adequate "depends on a careful

balance of the case-specific benefits and detriments of delaying or interrupting a

particular proceeding." In re Gulf Exploration, LLC, 289 S.W.3d at 842. And, though


        2
           At the hearing, the trial court indicated its doubt about the viability of the equitable claims by
calling them "artfully-pled claims of damages." Yet, the trial judge said "I am not denying them, because
I believe that . . . you would have been entitled to the summary judgment date. But at the summary
judgment date, no matter what I did, I am going to do the same injunction." Emphasis added. Nor does
the record before us contain a final judgment indicating that the claims were "finally decided." And, if the
equitable claims truly are meritless, as proposed by Northwest, they may be susceptible to actual and
final disposition through appropriate summary proceedings; however, we are not in a position to so
declare where the trial court did not first "finally decide" the matter.


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the situation before us does not risk the frustration of legislative policy, see id. at 842-43

(wherein the court noted that such a circumstance could authorize the use of review

through a mandamus proceeding), it nonetheless implicates unordinary circumstances

involving more than the waste of time and money. See id. (stating that the waste of

time and money in pursuing an appeal after final judgment does not render a final

appeal inadequate). Here, the parties intended that the arbitrator be bound by the prior

rulings of the trial court in addressing the claims within his bailiwick. In other words, and

per the terms of the contract, the arbitrator’s discretion to resolve the dispute before him

is rather fettered and dependent upon the manner in which the trial court first

adjudicates the equitable claims before it. So, allowing the arbitrator to proceed first

could frustrate the arbitration itself. It is not inconceivable that a final decision rendered

by a trial court on the equitable claims could control and potentially conflict with the

arbitrator's decision on related legal (that is, non-equitable) claims.3 That, in turn, would

present the need for further arbitration given that the arbitrator is obligated to abide by

the trial court's ruling. And, if one is to add into the mix the time-sensitive nature of the

dispute4 and the nature of the contract,5 more than the mere risk of wasting time and

money are implicated. Thus, it can be said that the decision jeopardizes the policy

favoring arbitration since arbitration may not resolve the matter given the need for later,

and ultimately controlling, judicial action. At the very least, the arbitrator would benefit



        3
           If the equitable claims are baseless and "finally decided" to be such, then there is no potential
for conflict. But, the trial court has not so held via any final ruling. So, we can only speculate on the
matter, which, in turn, leaves open the possibility of potential conflict.
        4
        But for the temporary injunction issued by the trial court, the contract was to expire by March 31,
2014. Yet, the temporary injunction itself expires on May 18, 2014.
        5
            It involves the provision of medical services to the poor by Wyatt.

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by knowing to what findings of fact and conclusions of law, if any, he would have to

defer (given the contractual limitations on his authority) in rendering his decision.

       The totality of the unique circumstances at bar prevent us from holding that Wyatt

has an adequate appellate remedy here. We do not attempt to impugn In re J.W. Res.

Exploration & Dev., Inc. (supra) or reject In re Gulf Exploration, LLC (supra) but rather

endeavor to follow their actual principles. Both hold that orders compelling arbitration

are seldom subject to review via a mandamus proceeding while neither foreclose the

possibility given the presence of extraordinary circumstances.                   Extraordinary

circumstances exist here. And, in view of our holding that the trial court abused its

discretion in ordering arbitration to proceed without first adjudicating the equitable

claims, Wyatt has shown itself entitled to a writ of mandamus directing the trial court to

withdraw the order to arbitrate until it has "finally decided" the pending equitable claims.

       As for Wyatt's effort to have us review, through mandamus, the temporary

injunction issued by the trial court, we note that such can generally occur through an

interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (a) (4) (West

Supp. 2013) (stating that “[a] person may appeal from an interlocutory order of a district

court . . . that . . . grants or refuses a temporary injunction. . . .”). Wyatt need not wait

for arbitration to occur or the trial court to finally adjudicate the equitable claims before it

can cause the matter to be considered.             Thus, the relator has an adequate legal

remedy, which, in turn, vitiates the propriety of considering the matter through a

proceeding for mandamus relief. We would note though that the trial court may care to

revisit the matter given our disposition of the arbitration question, however.




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       Accordingly, we conditionally grant Wyatt's petition for writ of mandamus

directing the trial court to withdraw its order compelling arbitration. However, we trust

that the trial court will act in accordance with this opinion. Thus, we will issue the

appropriate writ of mandamus only if the trial court fails to vacate the order within 15

days of the date of this opinion.6



                                                                Brian Quinn
                                                                Chief Justice




       6
           We deny Wyatt’s Motion for Temporary Relief filed on March 30, 2014, as moot.

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