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Click here for the full text of this decision FACTS:Millennium Jaguar of Texas Inc. and Millennium Luxury Imports of Dallas LLC (collectively, Millennium) filed suit against Sonic-Carrollton V LP, Sonic of Texas Inc. and Volvo Cars of North America (Sonic and Volvo) based on an asset purchase agreement between Sonic-Carrollton and Millennium Jaguar. Millennium claimed, inter alia, that Sonic breached the agreement when it failed to close the transaction for the purchase and sale of a Volvo automobile dealership and that Volvo tortiously interfered with the agreement by refusing to consent to the transfer of the dealership. Sonic and Volvo asserted the claims were covered by the agreement’s arbitration provision and moved to compel arbitration. The parties agreed their arbitration agreement covers their disputes and the transaction involved interstate commerce, implicating the Federal Arbitration Act (FAA). Nevertheless, Millennium filed a motion to abate the arbitration to allow the Texas Motor Vehicle Board (TMVB) to exercise “primary jurisdiction” respecting, among other issues, its challenge to the validity of Volvo’s right of first refusal under Texas Occupations Code ��2301.003(b) and 2301.359(e). Millennium argued in its motion to abate that the policy of primary jurisdiction rendered the dispute nonarbitrable, at least until the TMVB was allowed to exercise its expertise under the Texas Occupations Code. Millennium’s position was that after the TMVB exercised its primary jurisdiction to construe the code provisions as to Volvo’s right of first refusal, the trial court could determine whether arbitration should proceed. On April 30, 2007, the trial court granted the motion to abate but signed an order that also concluded the arbitration agreement was valid, enforceable and applicable to the dispute. The order stated, in part, “[T]his matter is abated to permit the TMVB to exercise primary jurisdiction in connection with the issues presented. It is FURTHER ORDERED that once the proceeding before the TMVB is concluded, or if the TMVB fails to or declines to exercise jurisdiction, the Parties are compelled to arbitration in accordance with the arbitration agreement set forth in the asset purchase agreement at issue.” Sonic and Volvo filed a petition for writ of mandamus and motion for stay to preserve jurisdiction and prevent mootness. Sonic and Volvo argued in their petition that the trial court’s abatement of arbitration deprived them of their arbitration agreement, the purpose of which was to provide the parties a rapid, inexpensive alternative to litigation and to TMVB proceedings. Further, Sonic and Volvo contended that the order left open the questions of when, if ever, the arbitration would occur and what issues, if any, remained for arbitration after the TMVB proceeding. Millennium responded that the court could not review the trial court’s order by mandamus, because the trial court did not deny arbitration. Moreover, Millenium claimed that Sonic and Volvo had an adequate remedy by appeal after the conclusion of arbitration. HOLDING:The court conditionally granted Sonic’s and Volvo’s petition for writ of mandamus. In its 1992 opinion Jack B. Anglin Co. v. Tipps, the Texas Supreme Court concluded mandamus is appropriate to set aside an order that deprives a party of its right to proceed to arbitration under the FAA, 9 U.S.C. ��1-16. In that opinion, the Texas Supreme Court stated: “Although mandamus relief will not issue merely because an appellate remedy may be more expensive and time-consuming than mandamus, it will issue when the failure to do so would vitiate and render illusory the subject matter of an appeal. Absent mandamus relief, Anglin would be deprived of the benefits of the arbitration clause it contracted for, and the purpose of providing a rapid, inexpensive alternative to traditional litigation would be defeated.” In this case, the court stated that the trial court’s order abating the arbitration so that the dispute could be considered by a third forum, the TMVB, flew in the face of the speedy dispute resolution intended by the parties’ broadly framed arbitration agreement and the FAA. Not only would referral to the TMVB for its decision sidetrack arbitration for some indeterminate time, the court stated, but under Texas Occupations Code �2301.609 the decision of the TMVB itself is subject to judicial review, which process would add to the deferral of arbitration. This process of abating arbitration until the TMVB acts or declines to act, the court stated, would subvert the process of arbitration for which the parties bargained. The court concluded that the implications of the FAA and the strong policy favoring arbitration preempted state laws that act to limit the availability of arbitration. Thus, the court held that the trial court abused its discretion by ordering the parties to proceed to the TMVB prior to commencing arbitration. Moreover, the court found that Sonic and Volvo lacked an adequate remedy by appeal, because it would have to wait until the conclusion of the TMVB proceedings to appeal, which would vitiate their right to proceed to arbitration immediately. OPINION:Lang, J.; Wright, O’Neill and Lang, JJ.

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