GAF Corp. v. Bamber

OPINION DON BURGESS, Justice. GAF Corporation filed two interlocutory appeals (No. 09-00-131-CV and No. 09-00-132-CV), two notices of appeal (No. 09-00-150-CV and No. 09-00-151-CV), and a petition for writ of mandamus (No. 09-00-153-CV), all of which mdse from orders entered by the 58th District Court. In an order signed March 7, 2000, Judge Mehaffy denied GAF’s motion to compel arbitration and entered judgment against GAF, The next day, march 8, 2000, Judge Me-haffy entered a supplemental order directing GAF to pay all future allocated billings by the CCR under the Settlement Agreement, upon receipt. Subsequently, on March 24, 2000, Judge Mehaffy signed an order denying GAF’s motion to stay litigation and compel arbitration. GAF complains of these orders. We first note the parties agreed in oral argument this action is subject to the Federal Arbitration Act rather than the Texas General Arbitration Act. See 9 U.S.C. §§ 1-16 (the Federal Act); Tex. Civ. PRac. & Rem.Code Ann. §§ 171.001-.098 (Vernon 1997 and Supp.2000) (the Texas Act). In Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992), the Supreme Court noted that an order denying arbitration under the Texas Act is challenged by interlocutory appeal, while an order denying arbitration under the Federal Act must be contested by mandamus. As both sides agree the Texas Act does not apply to the instant cause, both interlocutory appeals (No. 09-00-131-CV and No. 09-00-132-CV) are dismissed for want of jurisdiction. An order denying arbitration under the Federal Act does not constitute a final judgment, so normally mandamus will lie. Here, the denial is coupled with a judgment. GAF admits the orders do not dispose of all claims between all parties, but only those issues between Plaintiffs and GAF. Appeals may be had only from final orders or judgments and a final judgment is one which disposes of all legal issues between all parties. See Tipps, 842 S.W.2d at 272 (citing Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex.1986)). Accordingly, the orders of March 7 and 8 do not constitute a final judgment. Because the record does not reflect GAF obtained a severance in either cause, the appeals (No. 09-00-150-CV and No. 09-00-151-CV) are interlocutory and must be dismissed for want of jurisdiction. See Tex. Civ. PRac. & Rem. Code Ann. § 51.014 (Vernon Supp.2000). [652] Before us, therefore, is only the petition for writ of mandamus (No. 09-00-153-CV). The only issue we may consider is GAF’s claim that the trial court erred in refusing to enforce the arbitration agreement. The Settlement Agreement provides, in pertinent part, 7. Payments to Plaintiff Counsel by the CCR under Paragraph 5 of this Settlement Agreement shall be funded by the CCR member companies in accordance with the terms of the Producer Agreement Concerning Center for Claims Resolution (as amended, effective February 1, 1994) and each CCR member company shall be liable under this Settlement Agreement only for its individual share of such payments as determined under that Producer Agreement. In the event that the CCR fails to make any of the payments pursuant to Paragraph 6 because any one of the CCR member companies fails to make timely payment of its individual share of such payment when such payment has become due in accordance with all of the terms of this Settlement Agreement (a “Default”), Plaintiff Counsel shall have, with respect to any and all Plaintiffs whose claims have not been paid in full by the CCR under this Agreement as of the date of the Default, the option of either (a) continuing the settlement as to the non-Defaulting CCR member companies; or (b) declaring this Settlement Agreement null and void as against all CCR member companies. If Plaintiff Counsel elects to declare this Settlement Agreement null and void as against all CCR member companies, that election must be made by providing written notice to the CCR of their decision to do so within thirty (30) days of notice to that Counsel of any CCR member company’s failure to make timely payment of its share of any payment due under Paragraph 6; and in such event, Plaintiffs that opt to bring suit in the tort system against any CCR member company shall have one year from the date of such written notice of termination to file their claims in the tort system, unless the applicable law provides for a longer period of time. If Plaintiff Counsel elects to continue the settlement as to the non-defaulting CCR member companies, then as to the defaulting CCR member only, any and all plaintiffs whose claims have not been paid in full by the CCR under this Agreement shall have the option of (a) electing to enforce the Defaulting CCR member company’s obligations under this Settlement Agreement or (b) electing to pursue such plaintiffs claims for asbestos-related personal injury against the Defaulting CCR member company in the tort system; and such Plaintiffs shall have one year from the date of the Notice of Default to file their claims in the tort system, against the defaulting CCR member company, unless the applicable law provides for a longer period of time. [[Image here]] 12. It is agreed that the parties will make good faith efforts to resolve any disputes that may arise while carrying out the terms and conditions of this Agreement. If the parties are unable to resolve a dispute, the issue shall be referred to a mutually agreeable arbitrator for binding resolution. If the parties are unable to mutually agree upon an arbitrator, then each party shall select one arbitrator, and the two arbitrators so selected shall select a third arbitrator. All disputes shall then be resolved by a majority vote of the three arbitrators. The decision of the mutually agreeable arbitrator, or of the majority of the three arbitrators, shall be final and binding upon the parties. The costs of the arbitration (including the arbitrator’s or arbitrators’ fees and expenses) shall be borne equally by the parties (unless otherwise directed by the arbitrator in his or her opinion resolving the matter or by agreement of the parties), and each party shall bear its own attorneys’ fees. [653] When considering the construction of a contract, we must first determine if the contract is ambiguous. If the contract language can be given a certain or definite meaning, it is not ambiguous and we are obligated to interpret the contract as a matter of law. See DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex.1999). An ambiguity does not arise merely because parties to an agreement advance differing interpretations. See Lopez v. Munoz, Hockema & Reed, 22 S.W.3d 857, 861 (Tex.2000). Rather, an ambiguity exists only after the application of established rules of construction leaves an agreement susceptible to more than one meaning. See Parks, 1 S.W.3d at 100. Furthermore, both possible meanings must be reasonable. See Lopez, 22 S.W.3d at 861. Here, the contract language can be given a definite legal meaning and is not reasonably susceptible to more than one meaning. Thus, it is unambiguous and is to be construed as a matter of law. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). We first note that in harmonizing provisions, “terms stated earlier in an agreement must be favored over subsequent terms.” Coker, 650 S.W.2d at 393. Paragraph 7, which permits the enforcement action initiated by Plaintiffs, precedes the arbitration provision of paragraph 12. Next, we observe that the agreement must be considered as a whole. See Provident American Ins. Co. v. Castaneda, 988 S.W.2d 189, 210 (Tex.1998). We must try to give effect to all contract provisions so that none will be rendered meaningless. See Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). We consider each part with every other part and presume the parties intend every clause to have some effect. See Rampart Capital Corp. v. Egmont Corp., 18 S.W.3d 318, 322 (Tex.App.— Beaumont 2000, no pet.). And we strive to give meaning to every clause to avoid rendering any portion meaningless. See Balandran v. Safeco Ins. Co. of America, 972 S.W.2d 738, 741 (Tex.1998). GAF contends that paragraph 12 controls this dispute, even though paragraph 7 explicitly provides remedies for a dispute exactly like this one. GAF’s interpretation renders paragraph 7 entirely meaningless. Additionally, “[i]t is a well established rule of construction that the specific language of an instrument controls over its general terms.” O’Connor v. O’Connor, 694 S.W.2d 152, 155 (Tex.App.—San Antonio 1985, writ ref'd n.r.e.). See also Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133-34 (Tex.1994). Paragraph 7 provides Plaintiffs specific remedies for a very specific dispute. Paragraph 12, on the other hand, is a general provision of a remedy for undefined disputes. In accordance with the rules of contract construction, it is clear the arbitration provision does not take precedence over the provision for Plaintiffs’ remedies when a settling company fails to make payment. We therefore find the trial court did not abuse its discretion in denying GAF’s motion to stay litigation and compel arbitration. Issue one is overruled. GAF’s remaining issues complain of the judgment and, as held above, we lack jurisdiction to consider those complaints. Therefore, GAF’s interlocutory appeals are DISMISSED FOR WANT OF JURISDICTION; GAF’s appeals are DISMISSED FOR WANT OF JURISDICTION, and GAF’s petition for writ of mandamus is DENIED.