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Click here for the full text of this decision FACTS:This dispute originally arose between Cameron County and Landmark Organization, a general construction contractor, in connection with damages allegedly sustained by the county following the construction of a new county jail complex. Cameron County, when filing suit against Landmark, also sued various subcontractors under claims of negligence, negligence per se, breach of express warranty and breach of fiduciary duty. Landmark then filed claims for contribution and indemnity against the subcontractors, who in turn filed cross-claims for contribution and indemnity against Landmark. Landmark and the subcontractors both filed motions to compel arbitration. On Oct. 29, 2004, respondent, the Hon. Abel C. Limas of the 404th District Court of Cameron County, signed an order 1. denying the subcontractors’ motions to compel arbitration, 2. granting Landmark’s motion to compel arbitration with the county and 3. severing the county’s claims against Landmark into a separate suit. The order did not specify whether the subcontractors’ claims regarding arbitration were governed by the Federal Arbitration Act or the Texas General Arbitration Act. The subcontractors then filed two parallel proceedings, one seeking mandamus and the other as an interlocutory appeal, seeking relief from the Oct. 29 order. HOLDING:The court conditionally grants the relief sought by the subcontractors in the mandamus proceeding. Respondent is ordered to vacate his order of Oct. 29, 2004, insofar as it denies the subcontractors’ motion to compel arbitration. The court concludes that interstate commerce was clearly involved in the construction of the county jail complex, and therefore the arbitration provisions at issue in both contracts are subject to the FAA. Thus, mandamus is the appropriate vehicle for relief. The incorporation provision of the standard form subcontract clearly borrows some of the terms of the general contract between Cameron County and Landmark, but is nonetheless a different and separate contract between the subcontractors and Landmark. The incorporation provision does not, however, create a relationship between the subcontractors and the county, nor does it impose any duties or obligations on the subcontractors with respect to the county. All references to Cameron County are explicitly removed from the language of the subcontract by operation of the incorporation provision. The incorporation provision first dictates the removal of all mention of the county, so that only Landmark and the subcontractors are named parties in the contract, and then adds that the subcontractor agrees not to violate any term of that amended, Cameron County-less contract. Thus, not only does the prime contract signed by Cameron County specifically disclaim any contractual relationship with a subcontractor, the subcontract signed by the subcontractors contains no reference to the county or to the county’s relationship with Landmark. The incorporation by reference doctrine applies when a party incorporates a document by reference into its own contract and thereby binds itself to provisions within the incorporated document. The subcontractors’ unilateral act cannot bind Cameron County, and Cameron County did not incorporate the Landmark-subcontractors agreement. The subcontractors also argue that the principle of equitable estoppel precludes the county from denying them the right to arbitrate the county’s claims. In its claims against the subcontractors, Cameron County seeks damages for breach of fiduciary duty by alleging the following: “The agreement between the County and Landmark required results in strict compliance with the agreement between them. Landmark’s performance pursuant to their agreement with the County did not strictly conform to those requirements and is therefore defective. Applicable construction regulations and/or practices were not followed by Landmark and some or all of [the Subcontractors]. Landmark and the [Subcontractors] are subsequently liable under their agreement with the County. Landmark and the [Subcontractors] failed to strictly comply with the agreement and are liable for damages proximately caused by such breach.” In making this allegation against the subcontractors, the county has implied that the subcontractors and the county were in a contractual relationship with each other via the intermediate contracts they both made with Landmark: Landmark and the subcontractors both are “liable under their agreement with the County” and “failed to strictly comply with the agreement.” The petition only refers to a single agreement, implying that the series of separate agreements between Cameron County and Landmark, and Landmark and the subcontractors, can be combined into a single agreement for the purposes of this suit in which Cameron County is attempting to enforce the terms of the Landmark-subcontractor agreement. The county has thus attempted to exploit (and thereby assume) the subcontractor-Landmark agreement itself,” and has not simply attempted to exploit the contractual relation of the parties. This establishes direct benefits estoppel even under the strict test espoused in In Re: Kellogg, Brown & Root, 166 S.W.3d 732 (Tex. 2005). The county, as the nonsignatory to the Landmark-subcontractor contract, cannot attempt to enforce specific terms of the subcontract and thereby obtain a direct benefit from the contract while simultaneously seeking to avoid the arbitration provision. The county is equitably estopped from preventing arbitration from occurring. The trial court erred by denying the subcontractors’ motion to compel, and this error constituted an abuse of discretion, the court concludes. OPINION:Valdez, C.J.; Valdez, C.J., Hinojosa and Garza, JJ.

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