In re Dish Network L.L.C.
| Decision Date | 30 August 2022 |
| Docket Number | 08-22-00022-CV |
| Citation | 657 S.W.3d 518 |
| Parties | IN RE: DISH NETWORK L.L.C. and Echosphere L.L.C., Relators. |
| Court | Texas Court of Appeals |
ATTORNEY FOR RELATOR: David M. Noll, Hagan Noll & Boyle LLC, 820 Gessner, Ste. 940, Houston, TX 77024.
ATTORNEY FOR REAL PARTY IN INTEREST: George P. Andritsos, Attorney at Law, 3116 Montana Ave., El Paso, TX 79903.
RESPONDENT: Selena Solis, Judge, 243rd District Court, 500 E. San Antonio, Ste. 901, El Paso, TX 79901.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
Relators, DISH Network L.L.C. and Echosphere L.L.C. (collectively, Dish), filed this writ of mandamus challenging an order of the Honorable Selena Solis, Judge of the 243rd Judicial District Court of El Paso, Texas. Judge Solis’ order referred the underlying dispute to binding arbitration (a ruling not challenged) but also selected the arbitrator (the ruling that is challenged). Dish contends that the trial court lacked the discretion to designate the arbitrator under the terms of the arbitration agreement. For the following reasons, we deny the petition for writ of mandamus.
In 2016, real party in interest Yvette Delgado sued Dish, her former employers, for employment discrimination and retaliation under Chapters 21 and 451 of the Texas Labor Code. Dish responded by moving to compel arbitration and stay proceedings based on an arbitration agreement (the Agreement) that Delgado signed during her employment with Dish. After the parties engaged in several years of pretrial discovery disputes, Dish filed a supplemental motion to compel arbitration.1
As the case is now postured before us, the parties do not dispute that they agreed to arbitrate the disputes raised in Delgado's petition. This dispute turns solely on how the arbitrator should be selected. The arbitration agreement provides in pertinent part:
The Employee agrees that this Agreement is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq., and is fully enforceable.... The arbitration shall be governed by and construed in accordance with the substantive law of the State in which the Employee performs services for EchoStar as of the date of the demand for arbitration .... A Single arbitrator engaged in the practice of law from the American Arbitration Association ("AAA") shall conduct the arbitration under the then current procedures of the AAA's National Rules for the Resolution of Employment Disputes ...
The agreement has no other language that addresses how the arbitrator should be selected.
The transcripts of several hearings below (and references to another hearing that is not a part of our record), suggest that the parties made some attempt at agreeing between themselves on a designated arbitrator. At one point the trial court proposed the names of several retired or former judges to serve as the arbitrator, including Chris Antcliff, a former appellate court justice and former trial court judge. Dish's counsel, however, ultimately insisted that the parties follow the American Arbitration Association (AAA) selection process in which AAA lists potential arbitrators, and the parties then rank order the list after exercising strikes.2
It is clear from our record that the parties could not agree on who should arbitrate the dispute. When the trial court granted Dish's motion to compel arbitration and stay proceedings, she appointed Antcliff as the arbitrator.3 Dish filed a motion for partial reconsideration of the trial court's order, questioning only the appointment of Antcliff as the arbitrator. Following a hearing on the motion, the trial court denied the motion by written order. The objection raised in that motion, and now on mandamus, has nothing to do with Antcliff's qualifications or ability to fairly arbitrate this dispute. Instead, Dish contends that the arbitration agreement requires that AAA designate the arbitrator through its selection process, and that the trial court thus lacked discretion to make the appointment.
Mandamus is an extraordinary remedy. In re Prudential Ins. Co. of America , 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). To obtain mandamus relief, a relator must show that (1) a trial court has clearly abused its discretion, and (2) the relator has no adequate remedy by appeal. Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).
A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to analyze or apply the law correctly. Id. at 840 ; In re CSX Corp. , 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam) ; In re ReadyOne Industries, Inc. , 394 S.W.3d 697, 700 (Tex.App.--El Paso 2012, no pet.). "The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred." Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 242 (Tex. 1985). We also explain the standard this way: the question is whether the trial court acted without reference to any guiding rules and principles. Id. at 241-42
When an arbitration agreement provides the mechanism to select the arbitrator, the court must enforce that procedure. See Americo Life, Inc. v. Myer , 440 S.W.3d 18, 21 (Tex. 2014). The Federal Arbitration Act (FAA) requires that if an agreement provides "a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed." 9 U.S.C. § 5.4 And if an arbitrator is selected in a manner contrary to the manner specified in the agreement, the arbitrator lacks jurisdiction over the dispute. Americo Life , 440 S.W.3d at 21. But if the agreement does not provide for an arbitrator selection process and the agreement is governed by the FAA, then the trial court may appoint an arbitrator if the parties cannot agree between themselves. See In re Serv. Corp. Intern. , 355 S.W.3d 655, 659 (Tex. 2011) (orig. proceeding) (per curiam), citing 9 U.S.C. § 5.
Like all contracts, an arbitration agreement "must be construed to give effect to the parties’ intent expressed in the text as understood in light of the facts and circumstances surrounding the [agreement's] execution ..." Americo Life , 440 S.W.3d at 22. To determine the parties’ intent, we look to the express language of their agreement. Coker v. Coker , 650 S.W.2d 391, 393 (Tex. 1983). If a written instrument can be given a certain or definite legal meaning or interpretation, it is not ambiguous and a court should construe it as matter of law. Id. "Whether a contract is ambiguous is [also] a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered." Id. at 394.
When a court construes a writing, it "consider[s] the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless." Id. at 393 (emphasis original). That way, "[n]o one phrase, sentence, or section [of a contract] should be isolated from its setting and considered apart from the other provisions." Guardian Tr. Co. v. Bauereisen , 132 Tex. 396, 121 S.W.2d 579, 583 (1938) ; see also Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd. , 574 S.W.3d 882, 889 (Tex. 2019) ().
The relevant text of the Agreement states that: "A Single arbitrator engaged in the practice of law from the American Arbitration Association ... shall conduct the arbitration under the then current procedures of the AAA's National Rules for the Resolution of Employment Disputes ...." Relators argue that this language constitutes an incorporation of the AAA rules as a whole. And those rules have their own provisions for selecting an arbitrator. American Arbitration Ass'n, Employment Arbitration Rules & Mediation Procedures, R-12(c) (amended and effective Nov. 1, 2009). Relators contend that the trial court's appointment of Antcliff amounted to an abuse of discretion because the appointment conflicted with the AAA's selection process.
Delgado concedes that the Agreement "states that any arbitration will be conducted by the arbitrator under the procedures of [the AAA] rules," but she nevertheless contends that the Agreement does not expressly adopt the AAA arbitrator selection process or incorporate all of the AAA rules. Stated differently, Delgado posits that "[a] provision stating that arbitration will be conducted by the arbitrator under the procedures within AAA Rules is not synonymous with stating that AAA must administer the arbitration or appoint the arbitrator." Rather, Delgado argues that the trial court's order complied the terms of the Agreement by appointing Antcliff, who satisfied the Agreement's language that the arbitrator be "[a] single arbitrator engaged in the practice of law from the [AAA]."
Neither the parties’ nor our own research has found any authority interpreting the precise language at issue. The parties do cite authorities that make glancing blows to our central question. Ultimately, the contrast between the language at issue in those cases, and the language used in this agreement, leads us to conclude that the relevant clause requires the arbitrator, once selected, to apply AAA rules, but does not require the AAA to manage the selection process.
It would have been easy enough for the parties to agree that AAA should handle the selection process for the arbitrator. They could have said something like, "If the parties fail to agree on an arbitrator, then the AAA will appoint the arbitrator under their then current rules." Examples of that kind of language are easy enough to find in the case law. See In re Service Corp. Int'l , 355 S.W.3d at 659 (...
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