Carlin v. 3V Inc., 14-96-00103-CV

• Citation: 928 S.W.2d 291
• Decision Date: 08 August 1996
• Docket Number: No. 14-96-00103-CV,14-96-00103-CV
• Parties: Francesco CARLIN and Compagnia Italiana Di Ricerca E Sviluppo S.R.L., Appellants, v. 3V INC., Appellee. (14th Dist.)
• Court: Court of Appeals of Texas

Page 291

928 S.W.2d 291

Francesco CARLIN and Compagnia Italiana Di Ricerca E

Sviluppo S.R.L., Appellants, v. 3V INC., Appellee.

No. 14-96-00103-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Aug. 8, 1996.

Rehearing Overruled Sept. 19, 1996.

John D. Norris, David J. Healey, Stephen L. Lundwall, for appellants.

Ronald Glenn Bliss, Houston, for appellee.

Before MURPHY, C.J., and AMIDEI and ANDERSON, JJ.

OPINION

AMIDEI, Justice.

Francesco Carlin ("Carlin") and Compagnia Italiana Di Ricerca E Sviluppo S.R.L. ("CIRS") appeal from an interlocutory order of the trial court denying an application to compel arbitration. TEX. CIV. PRAC. & REM.CODE ANN. § 171.017(a)(1) (Vernon 1986 & Supp.1996). In six points of error, appellant contends the trial court erred in not compelling 3V Inc. to arbitrate. We reverse the judgment of the trial court and render judgment compelling arbitration and abating the cause pending arbitration.

Appellant Carlin and appellee's sister corporation, SIGMA, entered the contract in question on January 5, 1981 ("1981 Italian agreement"). Appellant Carlin is an Italian citizen and SIGMA is an Italian corporation. Appellee 3V Inc. is a Delaware corporation and both SIGMA and 3V Inc. are wholly owned subsidiaries of their parent corporation, 3V Partecipazioni Industriali S.p.A., an Italian corporation. All the companies manufacture, sell and distribute specialty chemical products. By the terms of the 1981 Italian agreement, Carlin was to furnish technical expertise with respect to the development of PVC suspendants. The product is named "Polivic" and is used in the manufacture of PVC and other plastic products. The 1981 Italian agreement terminated by its owns terms on December 31, 1985. At some uncertain date prior to December 31, 1985, SIGMA assigned the rights to sell, manufacture and distribute Polivic to 3V Inc., including those rights acquired by SIGMA under the 1981 Italian agreement. 3V Inc. sells Polivic in all states in the United States, including Texas.

After the 1981 Italian agreement expired on December 31, 1985, Carlin and others developed other PVC suspendants and obtained patents for them. Carlin sold these products in Europe under the names of "Hydrol," "Ecostab," and "Ethapol."

In 1986, SIGMA sued Carlin in Italy, alleging a breach of the 1981 Italian agreement. Thereafter, SIGMA and Carlin agreed to arbitrate the case in Italy pursuant to the arbitration clause in the contract. In 1991, the Italian arbitrators issued a ruling against Carlin and in favor of SIGMA, finding that Carlin did in fact breach the agreement and misappropriated trade secrets from SIGMA, which were used in the development of his new products. The arbitration award was set aside in court proceedings in Italy because the arbitrators' decision to bifurcate the issues of liability and damages rendered their decision invalid under Italian law. The suit between SIGMA and Carlin was resumed and is still pending.

Appellee's original petition in this suit alleged, as causes of action, breach of the 1981 Italian agreement, tortious interference of existing and prospective contracts, unfair competition, misappropriation of and conversion of trade secrets, constructive fraud, breach of duty of good faith and fair dealing, and civil conspiracy. Appellee filed its amended petition after appellants filed their motion to compel arbitration. Appellee withdrew its claim of breach of contract from its amended petition but renewed its claims for tortious interference of existing and prospective contracts, unfair competition, misappropriation of trade secrets, and civil conspiracy. All of the appellee's claims are based on violations of the 1981 Italian agreement by appellants.

By the terms of the 1981 Italian agreement, Carlin contracted to furnish his technical expertise to SIGMA, which purports to give SIGMA "exclusive and final rights" to his "present and future technical know-how pertaining to production as well as application knowledge concerning the suspension and addition agents for PVC suspension field." Appellee alleges, in effect, that the terms of this contract precluded Carlin from thereafter developing and selling related technology in competition with appellee. The 1981 Italian agreement contains the following arbitration clause:

16. Any dispute concerning this agreement, its interpretation and execution, shall be assigned to a board of arbitration comprised of three arbitrators, friendly negotiators, of which one shall be appointed by each party and the third arbitrator, acting as President, shall be appointed upon agreement by the parties or, lacking such agreement, by the Chairman of the Bergamo Bar Association. The arbitrators shall decide "de bono and aequo" and without formality. Their verdict shall be binding and indisputable, since it represents the parties choice delegated to said arbitrators.

The proper standard of review on appeal from an interlocutory order concerning a motion to stay litigation and compel arbitration is the "no evidence" standard of review. Hearthshire Braeswood v. Bill Kelly Co., 849 S.W.2d 380, 384 (Tex.App.--Houston [14th Dist.] 1993, writ denied). In reviewing "no evidence" or legal sufficiency points, the court considers only the evidence and inferences, when viewed in their most favorable light, that tend to support the finding under attack, and disregards all evidence and inferences to the contrary. If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld. Id. at 384. When, as in this case, there are no findings of fact and conclusions of law, we must affirm the judgment if there is evidence to support it upon any legal theory asserted by the prevailing party. Id. at 384.

The trial court conducted a hearing to decide whether to compel arbitration on the basis of the motion to compel arbitration filed by appellants, the response to the motion to compel filed by appellee, together with affidavit attached in support of the response (affidavit of Antonio Maggioni, president of 3V Inc.), and reply of appellants to appellee's response to the motion to compel arbitration. The trial court conducted a hearing which was limited to argument on the filed motions, pleadings and affidavits submitted by the parties; no evidence was presented at the hearing. The court reporter did not make a record of the oral argument. The trial court denied the motion to compel arbitration without specifying any grounds for the denial and lifted the stay of the pending litigation.

The trial court may summarily decide whether to compel arbitration on the basis of affidavits, pleadings, discovery, and stipulations. However, if the material facts necessary to determine the issue are controverted, by an opposing affidavit or otherwise admissible evidence, the trial court must conduct an evidentiary hearing to determine the disputed material facts. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269 (Tex.1992).

In sub-point A, reply point one, to appellants' points of error, appellee argues that there are no findings of fact and the record contains no request for findings of fact. Therefore, appellee asserts that any findings of fact and conclusions of law that would support the order are deemed to have been made.

Rule 42(a)(1), Rules of Appellate Procedure, provides in pertinent part:

(1) Appeals from interlocutory orders (when allowed by law) shall be accelerated. In appeals from interlocutory orders, no motion for new trial shall be filed. The trial judge need not file findings of fact and conclusions of law, but may file findings and conclusions within thirty days after the judgment is signed.

The trial court did not err by not filing findings of fact and conclusions of law in this interlocutory appeal from its order denying appellants' motion to compel arbitration under the Texas Arbitration Act. See Smith Barney Shearson, Inc. v. Finstad, 888 S.W.2d 111, 114 (Tex.App.--Houston [1st Dist.] 1994, no writ); TEX.R.APP. P. 42(a)(1). Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex.1968) cited by appellee is not applicable. However, where no findings of fact are given, it will be presumed the trial court made all findings necessary to support the interlocutory order. Dresser Industries, Inc. v. Forscan Corp., 641 S.W.2d 311, 316 (Tex.App.--Houston [14th Dist.] 1982, no writ); 6 RICHARD ORSINGER, MCDONALD TEXAS CIVIL APPELLATE PRACTICE § 18.10(c) (rev. 1992).

In sub-point B(2), reply point one, appellee argues that appellants cannot invoke arbitration under Section 171.002(a), Texas Civil Practices and Remedies Code (The Texas Arbitration Act) without showing that appellants complied with Section 171.022 concerning appellants' nonprofit tax status. In sub-point B(3), reply point one, appellee argues that appellants cannot invoke arbitration without first showing that the arbitration clause in the 1981 Italian agreement is a "domestic" agreement. In sub-point C, appellee argues that appellants have waived their right to arbitration because they "substantially invoked the judicial process prior to requesting arbitration." Appellee has waived his right to complain on appeal of these points because it did not raise these grounds in the trial court and asserts them now for the first time on this appeal. Rule 52(a) of the Texas Rules of Appellate Procedure provides in relevant part:

In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion.

Furthermore, appellee's sub-point B(2), reply point one, concerning no proof of tax status under Section 171.022, Texas Civil Practice and Remedies Code, has...