IN RE UBS FIN. SERV, INC

Full title: IN RE UBS FINANCIAL SERVICES, INC., Relator. IN THE ESTATE OF EDITH P…

Court: Court of Appeals of Texas, Second District, Fort Worth

Date published: Jun 30, 2005

Nos. 02-05-152-CV, 02-05-153-CV (Tex. App. Jun. 30, 2005)

Opinion

Nos. 02-05-152-CV, 02-05-153-CV

Delivered: June 30, 2005.

Appeal from Probate Court No. 1 of Tarrant County.

Original Proceeding.

PANEL A: LIVINGSTON, DAUPHINOT, and WALKER, JJ.

MEMORANDUM OPINION¹

1 See Tex.R.App.P. 47.4.

LEE ANN DAUPHINOT, Justice.

Relator and Appellant UBS Financial Services, Inc. ("UBS") brings both a petition for writ of mandamus and an interlocutory appeal challenging the trial court's denial of its motion to compel arbitration. After we sent UBS a letter communicating our concerns that we may not have jurisdiction over its appeal, UBS filed a motion to consolidate these proceedings, which we hereby grant.²

2 See In re Valero Energy Corp., 968 S.W.2d 916, 916-17 (Tex. 1998) (orig. proceeding) ("[T]he better course of action for a court of appeals confronted with an interlocutory appeal and a mandamus proceeding seeking to compel arbitration would be to consolidate the two proceedings and render a decision disposing of both simultaneously.").

When it is unclear to parties whether the Federal Arbitration Act ("FAA") or the Texas General Arbitration Act ("TGAA") governs their arbitration dispute, they must pursue parallel appellate proceedings because a dispute governed by the TGAA must be brought on interlocutory appeal, but a dispute governed by the FAA must be raised by a petition for a writ of mandamus.³ The FAA governs "when the dispute concerns a `contract evidencing a transaction involving commerce.'"⁴

3 Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272-73 (Tex. 1992) (orig. proceeding); see also 9 U.S.C.A. § 16 (1999); Tex. Civ. Prac. Rem. Code Ann. § 171.098 (Vernon Supp. 2004-05).

4 Jack B. Anglin Co., 842 S.W.2d at 269-70 (citing 9 U.S.C. § 2).

The consolidated proceedings in this court come from probate proceedings filed by Bank One, N.A. and a will contest affecting the estate of Edith Comer filed by Susan Olcott, Comer's granddaughter, among others. UBS is the successor to PaineWebber Financial Services, Inc., with whom a Resource Management Account (RMA) was opened by Comer and Susan Olcott. The RMA included a check-writing feature and a daily sweep of uninvested cash balances into a money market fund. The account application bears the signatures of Comer and Susan Olcott. Both agreed to arbitrate any controversies with PaineWebber in accordance with the Master Account Agreement. The Master Account Agreement states that the FAA applies, and we hold that it does.⁵ Because the FAA governs and preempts the TGAA, we dismiss UBS's interlocutory appeal for want of jurisdiction.

5 See Am. Med. Techs., Inc. v. Miller, 149 S.W.3d 265, 269 (Tex.App.-Houston [14^th Dist.] 2004, no pet.) (combining orig. proceeding and interlocutory appeal); In re Merrill Lynch Trust Co. FSB, 123 S.W.3d 549, 554 (Tex.App.-San Antonio 2003, orig. proceeding); In re Whitfield, 115 S.W.3d 753, 757 (Tex.App.-Beaumont 2003, orig. proceeding); Eurocapital Group, Ltd. v. Goldman Sachs Co., 17 S.W.3d 426, 430 (Tex.App.-Houston [1^st Dist.] 2000, no pet.); Thomas James Assocs. v. Owens, 1 S.W.3d 315, 319 (Tex.App.-Dallas 1999, no pet.).

The court has also considered UBS's petition for writ of mandamus and is of the opinion that relief should be denied. Accordingly, UBS's petition for writ of mandamus is denied.