In Re Service Corporation International (Tex. 2011)(Per Curiam Opinion)
FULL TEXT OF OPINION [ forthcoming ]
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OPINION OF THE COURT OF APPEALS BELOW: Court of Appeals
Also see: Texas Causes of Action | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams
In re Service Corp. Inc., No. 10-0158 (Tex. Dec. 16, 2011)(per curiam opinion)
(appointment of arbitrator based on agreement on method, rather than selection by the trial court judge) (mandamus granted)
IN RE SERVICE CORPORATION INTERNATIONAL AND SCI TEXAS FUNERAL SERVICES, INC., JOINTLY D/B/A MONT META
MEMORIAL GARDENS; from Cameron County; 13th district (13-10-00026-CV, ___ SW3d ___, 02-23-10)
EXCERPT FROM TEXAS SUPREME COURT'S OPINION
Norma Sandoval and her sister, Nora Martinez, jointly filed suit against Service Corporation
International (SCI) alleging fraud, deceptive trade practices, and other tort claims arising from their
respective interment rights and services contracts for family burial plots at Mont Meta Memorial Park.1
The parties agree the dispute was required to be arbitrated pursuant to the Federal Arbitration Act, 9
U.S.C. §§ 1-16.
SCI asserts that the trial court’s appointment of an arbitrator interfered with the contractual rights of the
parties and was not authorized by the Federal Arbitration Act. Without reaching the parties’ arguments
as to which party or parties have the burden of approaching the AAA to appoint an arbitrator, we agree
with SCI that the trial court’s appointment was an abuse of discretion from which there is no adequate
remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004). In a related
case also decided today, In re Service Corp. International & SCI Tex. Funeral Services, Inc. d/b/a
Magic Valley Memorial Gardens, we analyzed an identical arbitration provision. __ S.W.3d __ (Tex.
2011). Following the rationale in Magic Valley Memorial Gardens, we conclude the trial court abused
its discretion by appointing an arbitrator instead of following the agreed-upon method of selection
outlined in the contract. As a matter of law, the two month delay in the selection of an arbitrator in this
case, by itself, does not establish a lapse or failure of the parties to avail themselves of the contractual
selection method. See 9 U.S.C. § 5; Magic Valley Memorial Gardens, __ S.W.3d __ (Tex. 2011).
Accordingly, without hearing oral argument, we conditionally grant SCI’s petition for writ of mandamus
and direct the trial court to vacate its prior order appointing David Calvillo as arbitrator. TEX. R.APP.
P. 59.1, 52.8(c). We are confident the trial court will comply, and the writ will issue only if it fails to do so.
OPINION DELIVERED: December 16, 2011
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of
Per Curiam Opinion
Link to Electronic Briefs in this case 10-0158 IN RE SERVICE CORP. INT'L