Chapter 2
Courts and Alternative
Dispute Resolution
Case 2.1
N.C.App.,2010.
Southern Prestige Industries, Inc. v. Independence Plating Corp.
690 S.E.2d 768, 2010 WL 348005 (N.C.App.)
Court of Appeals of North Carolina.
only office and all of its personnel are located in the state of New Jersey. Defendant does not advertise or otherwise solicit
business in North Carolina. Prior to July 2007, defendant had engaged in a long-standing business relationship with Kidde
Aerospace (“Kidde”), a North Carolina company.
In July 2007, on the recommendation of Kidde, Southern Prestige Industries, Inc. (“plaintiff”), a North Carolina corporation,
contacted defendant to establish a business relationship. Under the terms of the arrangement between plaintiff and defendant,
defendant’s motion to dismiss. On 4 May 2009, after reviewing the evidence submitted by the parties, the trial court entered an
order denying defendant’s motion to dismiss. Defendant appeals.
Defendant’s only argument on appeal is that the trial court erred in denying its motion to dismiss for lack of personal jurisdiction.
Specifically, defendant argues there are insufficient contacts to satisfy the due process of law requirements that are necessary to
subject defendant to the personal jurisdiction of North Carolina’s courts. We disagree.
statute. If statutory authority exists, we consider under the second prong whether exercise of our jurisdiction comports with
standards of due process.
Baker v. Lanier Marine Liquidators, Inc.,
187 N.C.App. 711, 714, 654 S.E.2d 41, 44 (2007)(internal citations omitted).
Defendant has conceded that the facts are sufficient to confer jurisdiction under N.C. Gen.Stat. § 1-75.4 (2007), the North Carolina
long-arm statute. Therefore, “the inquiry becomes whether plaintiffs’ assertion of jurisdiction over defendants complies with due
(2) general jurisdiction. Specific jurisdiction exists when the controversy arises out of the defendant’s contacts with the forum
state. General jurisdiction may be asserted over a defendant even if the cause of action is unrelated to defendant’s activities in
the forum as long as there are sufficient ‘continuous and systematic’ contacts between defendant and the forum state.
Banc of Am. Secs. LLC v. Evergreen Int’l Aviation, Inc.,
169 N . C.App. 690, 696, 611 S.E.2d 179, 184 (2005) (internal quotations
and citations omitted). In the instant case, the record does not support a finding of general jurisdiction and so it must be
$21,018.70 to plaintiff in North Carolina, and these invoices were paid from plaintiff’s corporate account at a North Carolina bank.
Plaintiff filed a breach of contract action against defendant because the machined parts that were shipped to defendant from North
Carolina and then anodized by defendant and shipped back to North Carolina were defective.
“It is generally conceded that a state has a manifest interest in providing its residents with a convenient forum for redressing
injuries inflicted by out–of–state actors. Thus, North Carolina has a ‘manifest interest’ in providing the plaintiff ‘a convenient forum
Case 2.2
C.A.9 (Or.),2009.
Oregon v. Legal Services Corp.
552 F.3d 965, 09 Cal. Daily Op. Serv. 258, 2009 Daily Journal D.A.R. 356
United States Court of Appeals,
Procedure 12(b)(6). Oregon brought suit against the Legal Services Corporation (LSC) for an alleged violation of its rights under
the Tenth Amendment to the United States Constitution. LSC has required the recipients of its funding to maintain legal, physical,
and financial separation from organizations that engage in certain prohibited activities. Oregon alleges that this restriction has
effectively thwarted its ability to regulate the practice of law in the State of Oregon and to provide legal services to its citizens. The
district court dismissed the suit on the basis that Oregon’s allegations of injury were not recoverable, and Oregon appealed.
FN1. This regulation was promulgated in response to a constitutional challenge to LSC restrictions on recipients using
non-LSC funds for otherwise constitutional activities. Shortly after the restrictions were amended in 1996 to prohibit
certain legal activities, a district court in Hawaii enjoined the LSC from enforcing them “to the extent that they relate to the
FN2. These regulations were designed to mirror the program integrity rule promulgated pursuant to Title X of the Public
Health Service Act, which withstood constitutional attack in
Rust v. Sullivan,
500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d
233 (1991).
See
62 Fed.Reg. 27,695-97 (May 21, 1997). LSC’s current regulations have also withstood constitutional
challenges.
See LASH II,
145 F.3d at 1031;
Velazquez v. Legal Servs. Corp. (Velazquez II),
164 F.3d 757, 773 (2d
Cir.1999).
*968 Whether an LSC fund recipient is sufficiently physically and financially separated from non-compliant legal services providers
is determined on a case-by-case basis, based upon the totality of the circumstances.
Id.
§ 1610.8(a)(3). The program integrity
regulation specifies that “mere bookkeeping separation of LSC funds from other funds is not sufficient.”
Id.
Other factors, such as
having separate personnel, separate accounting and timekeeping records, separate facilities, and distinguishing forms of
CHAPTER 2: COURTS AND ALTERNATIVE DISPUTE RESOLUTION 5
In response to the State Bar’s amended guidelines, LASO submitted a configuration proposal to LSC that would combine the
LASO and OLC corporations into one non-profit corporation. Under the proposal, the newly constituted corporation would have two
divisions, one of which would be subject to the LSC restrictions and the other of which would not. The two divisions would also
maintain separate financial books and records, and would notify the public of their distinct functions in letterheads, business cards,
Oregon’s complaint, because the state itself was not regulated by the LSC and because Oregon’s claims of coercion did not meet
the high standard required under Ninth Circuit precedents.
See
*969
California v. United States,
104 F.3d 1086 (9th Cir.1997);
Nevada v. Skinner,
884 F.2d 445 (9th Cir.1989).
The district court adopted the magistrate judge’s recommendations and re–severed the lawsuits. Oregon appealed its claims to this
court.
FN3. Neither the district court nor the parties alluded to any possible jurisdictional problem with Oregon’s prosecution of
this action. We therefore asked, at oral argument, for supplemental briefing on Oregon’s standing to pursue this action.
DISCUSSION
I. Standing Requirements
(1983)). Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be “fairly
…*970 trace[able] to the challenged action of the defendant, and not … the result [of] the independent action of some third party
not before the court.”
Simon v. Eastern Ky. Welfare Rights Organization,
426 U.S. 26, 41-42 [96 S.Ct. 1917, 48 L.Ed.2d 450]
(1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”
Id.
at 38, 43 [96 S.Ct. 1917].
504 U.S. at 560-61, 112 S.Ct. 2130 (footnote and some internal citations omitted). Before applying these requirements to the facts
of this case, however, we must first consider what impact, if any, Oregon’s status as a state as opposed to a private party has on
the standing inquiry.
concrete to create an actual controversy between the State and the defendant.”
Id.
at 602, 102 S.Ct. 3260. Furthermore,
“[i]nterests of private parties are obviously not in themselves sovereign interests, and they do not become such simply by virtue of
the State’s aiding in their achievement. In such situations, the State is no more than a nominal party.”
Id.
If a State is only a
nominal party “without a real interest of its own-then it will not have standing under the
parens patriae
doctrine.”
Id.
at 600, 102
S.Ct. 3260.
rates in a manner that discriminated against Georgia shippers in violation of federal antitrust law); *971
Pennsylvania v. West
Virginia,
262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923) (Pennsylvania had standing to sue for an injunction preventing West
Virginia from giving other states a preferential right of purchase and curtailing the supply of gas carried to Pennsylvania).
As the Supreme Court noted in
Snapp,
the common thread among these cases is each state’s quasi-sovereign interest in the
health and well-being of its residents and a quasi-sovereign interest in “not being discriminatorily denied its rightful status within the
federal jurisdiction” function to further limit the role of the courts, but they can be modified or abrogated by Congress.
Allen,
468
U.S. at 751, 104 S.Ct. 3315;
see also Warth v. Seldin,
422 U.S. 490, 500-01, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (noting that
without the prudential requirements, “the courts would be called upon to decide abstract questions of wide public significance even
though other governmental institutions may be more competent to address the questions,” and that “Congress may grant an
express right of action to persons who otherwise would be barred by prudential standing rules”).
U.S. at 561, 112 S.Ct. 2130, we do analyze the characterization of the injury itself to determine whether or not it is “concrete and
particularized,” “actual or imminent,” and “fairly traceable to the challenged action of the defendant.”
Id.
at 560, 112 S.Ct. 2130
(citations omitted). Oregon need only allege general factual allegations of injury resulting from LSC’s conduct to resist a motion to
dismiss for lack of standing. *972
Id.
at 561, 112 S.Ct. 2130. Because Oregon’s factual allegations do not rise to the level of a
concrete, particularized, actual or imminent injury against the state itself, that is independent from alleged harm to private parties,
we hold that the action must be dismissed for lack of subject matter jurisdiction.
Oregon alleges that LSC’s restrictions fall outside Congress’s spending authority. In addition, Oregon alleges that LSC uses its
restrictions to coerce LASO into complying with federal regulations over state regulations because LASO cannot survive as an
organization without federal funding.
Oregon further alleges that LSC’s restrictions limit Oregon’s ability to regulate LASO and its other legal services providers. Oregon
cannot require LASO to combine its facilities with OLS because that would make LASO ineligible for federal funding, and would
lead to LASO’s dissolution. Oregon paints this situation as a restriction on its ability to make policy, and alleges that such a
restriction violates the Tenth Amendment.
However, Oregon acknowledges that it is not regulated by LSC, and that it is completely free to make or change its policy in the
face of LSC regulations. Oregon does not receive LSC funding, and so is unaffected by its existence or non-existence aside from
the fact that parties within Oregon are recipients. Oregon would be in the same position it now occupies if the federal government,
for whatever reason, decided to cease further LSC funding. Therefore, Oregon’s only alleged injury is on behalf of its legal services
providers. As pleaded, Oregon’s injury is indistinguishable from LASO’s.
A. Oregon Has No Independent Injury
1.
Tenth Amendment Coercion Claim
[7][8] Although Oregon claims an injury under the Tenth Amendment separate from LASO’s, it has not alleged general facts
sufficient to establish such a claim. The Tenth Amendment reserves any power not expressly delegated to the federal government
1. Massachusetts alleged that “the act is a usurpation of power not granted to Congress by the Constitution-an attempted exercise
of the power of local self-government reserved to the States by the Tenth Amendment.”
Mellon,
262 U.S. at 479, 43 S.Ct. 597.
The Court found that Massachusetts, which had not accepted the funds or the conditions, had no standing to allege an injury under
the Tenth Amendment. The Court reasoned:
What, then, is the nature of the right of the State here asserted and how is it affected by this statute? Reduced to its simplest
terms, it is alleged that the *973 statute constitutes an attempt to legislate outside the powers granted to Congress by the
Constitution and within the field of local powers exclusively reserved to the States…. But what burden is imposed upon the
States, unequally or otherwise? Certainly there is none, unless it be the burden of taxation, and that falls upon their inhabitants,
(1991);
California,
104 F.3d 1086;
Nevada,
884 F.2d 445. In this case, Oregon is not a recipient of funds, nor does it have authority
to accept or refuse funds on behalf of its legal services providers, which are all private parties. Consequently, it cannot claim to be
the subject of coercion in violation of the Tenth Amendment.
2.
“Interference” Claim
Oregon argues in the alternative that it has been injured by LSC’s regulations, which thwart Oregon’s efforts at policy making with
regards to Oregon’s Legal Service Program. Oregon attempts to analogize its situation to cases recognizing a state’s standing to
defend its statutes when they are alleged to be unconstitutional or pre-empted by federal regulation.
See, e.g., Maine v. Taylor,
477 U.S. 131, 137, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986);
Wyoming ex rel. Crank v. United States,
539 F.3d 1236, 1242 (10th
Cir.2008). However, those cases are distinguishable, because in this case there is no dispute over Oregon’s ability to regulate its
legal services program, and no claim that Oregon’s laws have been invalidated as a result of the LSC restrictions.
*974 The core of the dispute is whether Oregon should have the ability to control the conditions surrounding a voluntary grant of
federal funds to specifically delineated private institutions. Because Oregon has no right, express or reserved, to do so, there is no
3260. The state’s interest in the “health and well-being-both physical and economic-of its residents in general” is not at issue here,
nor does Oregon allege that it is being “discriminatorily denied its rightful status within the federal system.”
Id.
Moreover, we can
see no effective way federal courts could ever limit
parens patriae
standing were a state allowed to bring suit on behalf of its
citizens solely by virtue of its interest that its citizens benefit from voluntary federal grants. Allowing such cases would make the
Case 2.3
512 F.3d 807, 85 U.S.P.Q.2d 1481
United States Court of Appeals,Sixth Circuit.
NCR CORPORATION, Plaintiff-Appellant,
v.
FN1. The parties agreed to allow a United State Magistrate Judge to conduct any and all proceedings in this matter and
enter the order of judgment, in accordance with 28 U.S.C. § 636(c) and Rule 73(b) of the Federal Rules of Civil
Procedure.
FN2.Section 206 applies in this action because KAL is a foreign corporation, organized under the laws of the United
Kingdom and located in Scotland.
I. BACKGROUND
NCR is one of the largest providers of Automatic Teller Machines (“ATM”) equipment, integrated hardware and software systems,
and related maintenance and support services in the world. NCR’s ATMs use either the Windows operating system or the OS/2
operating system. NCR installs its APTRA XFS software (“APTRA XFS”) on those ATMs using the Windows operating system and
FN3. Triple-DES is an encryption standard designed to make ATM transactions more secure.
On December 15, 1998, KAL and NCR entered into a Software License Agreement (“1998 Agreement”) in which KAL agreed to
10 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
develop and license to NCR three specific software components for NCR’s ATMs-Device Controls, Self Service Controls, and
Service Providers-which together form software known as Kalypso. KAL also agreed to “develop additional elements of Kalypso
from time to time” under the terms of the Agreement. In order to facilitate KAL’s development of NCR–friendly software, “NCR
agreed to loan to KAL certain computer hardware and/or software items that were necessary to enable KAL to adapt and support
the Kalypso Components.” To that end, NCR loaned to KAL an NCR ATM which contained NCR’s copyrighted APTRA XFS
software.
In addition to this particular ATM, NCR alleged that KAL obtained and accessed other NCR ATMs on which APTRA XFS or S4i
was installed from NCR bank licensees or from dealers of used or refurbished NCR ATMs. Any software still installed on these
ATMs could not have been operated without authorization from NCR.
NCR alleged that KAL, without permission, “obtained access to, made unauthorized*812 use of, and engaged in unauthorized
copying” of the APTRA XFS and/or S4i software on NCR ATMs, including the ATM loaned to KAL. According to NCR, by
unlawfully accessing and copying the APTRA XFS and S4i software, KAL was able to develop its Triple-DES upgrade-Kalignite
22.2 Any controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration and
judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall
be appointed upon the mutual agreement of both parties failing which both parties will agree to be subject to any arbitrator that
shall be chosen by the President of the Law Society.
The parties do not dispute that a valid agreement to arbitrate exists; rather the issue of contention is whether NCR’s *813 claims
Cir.2003), concluded that the arbitration clause’s language–“any controversy or claim arising out of or relating to this contract”–
“encompasses all claims which
touch upon matters
covered by the agreement.”(emphasis added). The court held that every
allegation in NCR’s Amended Complaint “relates to some part of the Agreement and will require examination and interpretation of
the Agreement or an exhibit to the Agreement.”
NCR argues that it was legal error for the court to apply the “touches upon matters” standard, while KAL argues that “touches upon
language in
Mitsubishi Motors
should be considered in light of its narrow context:
The issue the
Mitsubishi
Court addressed was whether the arbitration clause “should be read narrowly to exclude the statutory
claims,”
id.,
which *814 were part of the respondent’s counterclaim and included claims under the antitrust laws.
Id.
at 619-20,
105 S.Ct. 3346. The “enumerated articles” were provisions of a distribution agreement to which the arbitration provision
specifically referred.
Id.
at 617, 105 S.Ct. 3346. [Defendant], in its brief, apparently treats the Court’s statement as announcing
A. Copyright Infringement
[7][8][9] “Liability for direct [copyright] infringement arises from the violation of any one of the exclusive rights of a copyright owner.
The owner of copyright ... has the exclusive right to, and to authorize others to, reproduce, distribute, perform, display, and prepare
derivative works from the copyrighted [work].”
Bridgeport Music, Inc. v. Rhyme Syndicate Music,
376 F.3d 615, 621 (6th Cir.2004)
(internal citations omitted). “To succeed in a copyright infringement action, a plaintiff must establish that he or she owns the
copyrighted creation, and that the defendant copied it.”
Kohus v. Mariol,
328 F.3d 848, 853 (6th Cir.2003). But “where there is no
direct evidence of copying, a plaintiff may establish ‘an inference of copying by showing (1) access to the allegedly-infringed work
by the defendant [ ] and (2) a substantial similarity between the two works at issue.’ ”
Id.
at 853-54 (quoting
Ellis v. Diffie,
177 F.3d
503, 506 (6th Cir.1999)).
1. APTRA XFS (Count I)
2. S4i (Count II)
[11] We reach a different conclusion, however, with respect to NCR’s claim that KAL directly infringed the S4i software copyright.
No reference to the 1998 Agreement is necessary to determine whether (1) NCR owns a copyright in the S4i software or (2) KAL
was licensed or authorized to access and/or copy the S4i software. While the 1998 Agreement is not limited to KAL’s developing
software only for ATMs running APTRA XFS software, neither the Agreement itself nor the circumstances surrounding its
implementation implicate the S4i software.
KAL argues that any claim relating to the S4i software is in fact arbitrable. KAL points to several items in the Amended Complaint
to support its argument. First, NCR agreed that KAL would develop and license components of its Kalypso software for all of
NCR’s ATMs-not just those containing APTRA XFS software. Second, NCR agreed to loan KAL computer hardware and/or
software items that were necessary to enable KAL to adapt and support the Kalypso Components, and the Agreement does not
limit the loaned equipment to just those ATMs containing APTRA XFS software. Third, NCR does not allege that KAL engaged in
any different course of conduct in order to infringe NCR’s copyright in the S4i software. Fourth, KAL points out that NCR alleged
that “KAL engaged in unauthorized copying of the APTRA XFS
and/or S4i software
when KAL operated NCR ATMs (
whether
obtained from NCR pursuant to the Agreement,
from an NCR licensee, or from a second-hand ATM dealer).” (emphasis added).
CHAPTER 2: COURTS AND ALTERNATIVE DISPUTE RESOLUTION 13
1. APTRA XFS (Count III)
[16] NCR could maintain a contributory copyright infringement claim without referencing the 1998 Agreement. To maintain this
claim, NCR must establish that its licensees infringed its copyright in the APTRA XFS software when they provided KAL access to
the software. NCR must also establish KAL’s knowledge of the licensee’s infringing activity and KAL’s material contribution to the
licensees’ infringement.
In its Amended Complaint, NCR asserted that its licensing agreements “contain restrictions prohibiting third-party access to the
licensed ATMs as well as the software that is resident on that ATM” and that “KAL was aware of such license agreements, as well
as the third-party restrictions contained therein.” NCR also alleged that because KAL had entered into the 1998 Agreement, “which
contained strict provisions on confidentiality restrictions and authorized use, KAL was well aware of the confidentiality restrictions
*817 and use limitations employed by NCR with respect to its ATM system software. Thus, KAL knew or should have known that
no NCR licensee could authorize KAL to use the APTRA XFS or S4i software installed on an NCR bank ATM, especially not for the
purpose of developing a system software upgrade to directly compete with that of NCR.”
Taking these allegations together, KAL argues that NCR’s contributory infringement claim is “based upon KAL’s alleged knowledge
of third-party use restrictions, which NCR specifically alleges KAL obtained through the [1998] Agreement,” and, therefore, a court
must reference the 1998 Agreement in order to determine the merits of this claim. We disagree. At best, NCR’s Amended
Complaint alleges that KAL was likely on notice of the confidentiality and use restrictions contained within NCR’s licensing
agreements because of similar provisions contained within the 1998 Agreement. And while KAL’s knowledge of the confidentiality
provisions within the 1998 Agreement may implicate what KAL “would have reason to know” about the contents of the licensees’
agreements, we nevertheless conclude that NCR could maintain this claim without referencing the 1998 Agreement. First, while
the 1998 Agreement may be implicated here, a court would not need to examine, construe or interpret the terms of the 1998
Agreement-as it likely would for the direct infringement claim-to determine whether KAL had knowledge of the licensees‘ infringing
activity. Rather, a court could determine that KAL was aware of the alleged infringing activity by referencing some other source of
knowledge. Second, a court would not need to reference the 1998 Agreement to determine whether KAL materially contributed to
the licensees’ infringement. Under the circumstances here, we cannot conclude that NCR agreed to arbitrate this claim. This claim
is therefore not arbitrable.
2. S4i (Count IV)
14 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
D. Illegal Importation of Infringing Copies (Count VI)
NCR asserts that KAL developed its Kalignite Upgrade Solutions by infringing NCR’s copyrights in APTRA XFS and S4i and then
imported Kalignite Upgrade Solutions, the infringing product, into the United States.
1. APTRA XFS (Count VI in part)
Because this claim turns on whether KAL is liable for infringing NCR’s copyright in the APTRA XFS software, this claim is arbitrable
for the same reasons that NCR’s direct infringement claim is arbitrable.
2. S4i (Count VI in part)
FN4. Although the parties on appeal presented argument as to Rule 12(b)(6) and
forum non conveniens,
we decline to
reach the merits of these issues for the first time on appeal.
For the foregoing reasons, we AFFIRM the judgment of the district court as to NCR’s claims relating to the direct infringement of
the APTRA XFS software (Counts I and VI insofar as Count VI relates to APTRA XFS) and the claim of common law unfair
competition (Count VII). NCR must arbitrate these claims. We REVERSE and REMAND for further proceedings not inconsistent
with this opinion as to all of NCR’s claims relating to the S4i software (Counts II, IV, and VI *819 insofar as Count VI relates to S4i),
the contributory infringement claim relating to the APTRA XFS software (Count III), and the claim of tortious interference (Count V).
NCR may pursue these claims in federal court.
Supplemental Case Printout for:
Insight into Ethics
Tex.App.-Fort Worth,2003.
Jabri v. Qaddura
108 S.W.3d 404
Court of Appeals of Texas,
Fort Worth.
Saadallah JABRI and Aida Jabri, Appellants,
v.
Jamal QADDURA, Appellee.
and
Rola Qaddura, Appellant,
v.
Jamal Qaddura and Osama Qaddura, Appellees.
value of the house located at 2206 Gladstone. This is in addition to $40,000 Fourty [sic] Thousand U.S. Dollars the payment of
which is deferred.”
On October 19, 1999, Rola filed for divorce. She sought sole managing conservatorship of the parties’ two children, child support,
division of the parties’ estate, and enforcement of the terms of the Islamic Marriage Certificate. Rola subsequently sued Jamal’s
brother, Osama Qaddura, as a third-party defendant, alleging he was engaged in a conspiracy with Jamal whereby Jamal was
“purported Islamic Dowry agreement” is not an enforceable agreement under Texas law, nor is it a valid or qualified premarital
agreement under the Texas Family Code; the house on Gladstone Drive is the separate property of Jamal; the house on Vesta Via
Court is owned by Osama; and two certificates of deposit (for $102,348 and $5,398) are currently non-existent and neither party
has a claim of reimbursement for the monies. Accordingly, the trial court’s partial summary judgment ordered that Rola take
nothing on these claims.
FN1. Cause No. 76-184050-00 is not part of these consolidated appeals and is not pending before this court.
16 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
pending in *408 the 322 Judicial District Court of Tarrant County, Texas.
1.The Parties agree to arbitrate all existing issues among them in the above mentioned Cause Numbers in the appropriate District
Court, which includes the Divorce Case, the child custody of the [sic] Noor Qaddura and Farah Qaddura, the determination of each
party’s responsibilities and duties according to the Islamic rules of law by Texas Islamic Court.
2.All parties agree to sign the Texas Islamic Court required legal forms, and each party pays his required fees.
3.The panel of arbitrators of Texas Islamic Court will be formed according to the rules and regulations of Texas Islamic Court.
However, the parties agree and suggest the following names for the panel:
4.Each Party will submit all of his documents, exhibits, and evidence to Texas Islamic Court.
5.The parties agree that the Ruling of the Texas Islamic Court in the above mentioned Cause Numbers is Binding, and Final, and
no party will take any appeal or future legal action of any matter afterwards.
6.Each party will cause the above cause numbers to be abated pending the decision by the arbitrators, and submit the decision of
the arbitrators for adoption by the respective courts. The parties will ask the courts to refer the cases for arbitration to Texas
Islamic court within “Seven Days” from the establishment of the Texas Islamic Court panel of Arbitrators. The assignment must
include ALL cases, including those filed against or on behalf of other family members related to the parties. Each party will notify
FN2.
See
TEX. CIV. PRAC. & REM.CODE ANN. §§ 171.021, 171.025 (Vernon Supp.2003).
The hearing in the trial court:
FN3. Osama did not attend the hearing. His attorney informed the court that the attorney was not present when the two
arbitration documents were signed, he did not sign the documents on behalf of his client, and he could not agree that the
FN4. Appellants’ attorney stated that after she became involved in the case she filed a motion to set aside the partial
summary judgment.
FN5. Osama’s attorney attempted to persuade the trial court to sever the partial summary judgment from the remainder of
the case so the judgment in favor of his client could be final. The court denied the motion to sever.
FN6.
See
TEX.R.APP. P. 28.1 (“The trial court need not, but may-within 30 days after the order is signed-file findings of
fact and conclusions of law.”).
FN7. The divorce suit is appeal no. 2-02–416-CV; the protective order suit is appeal no. 2-02-415-CV. This court
previously granted Appellants’ motion to consolidate the two suits for purposes of appeal.
THE TEXAS GENERAL ARBITRATION ACT
The Texas General Arbitration Act provides:
§ 171.001. Arbitration Agreements Valid
*410 (a) A written agreement to arbitrate is valid and enforceable if the agreement is to arbitrate a controversy that:
(1) exists at the time of the agreement; or
(2) arises between the parties after the date of the agreement.
(b) A party may revoke the agreement only on a ground that exists at law or in equity for the revocation of a contract.
TEX. CIV. PRAC. & REM.CODE ANN. § 171.001. A court shall order the parties to arbitrate on application of a party showing an
agreement to arbitrate, and the opposing party’s refusal to arbitrate.
Id.
§ 171.021(a). If a party opposing the application denies the
existence of the agreement, the court shall summarily determine that issue.
Id.
§ 171.021(b). The court shall order the arbitration if
claims fell within the scope of the Agreement. Arbitration is strongly favored under federal and state law.
Cantella & Co. v.
Goodwin,
924 S.W.2d 943, 944 (Tex.1996) (orig.proceeding);
Prudential Sec. Inc. v. Marshall,
909 S.W.2d 896, 898 (Tex.1995)
(orig.proceeding). Any doubts regarding the scope of an arbitration agreement should be resolved in favor of arbitration.
Cantella,
924 S.W.2d at 944;
Merrill Lynch, Pierce, Fenner & Smith v. Eddings,
838 S.W.2d 874, 880 (Tex.App.-Waco 1992, writ denied).
Every reasonable presumption must be decided in favor of arbitration.
See Ikon,
2 S.W.3d at 693.
instrument is a question of law for the court.
City of Pinehurst v. Spooner Addition Water Co.,
432 S.W.2d 515, 518 (Tex.1968).
Our primary goal in construing a written contract is to ascertain and give effect to the intent of the parties as expressed in the
instrument.
See Balandran v. Safeco Ins. Co.,
972 S.W.2d 738, 741 (Tex.1998);
Nat’l Union Fire Ins. Co. v. CBI Indus.,
907
S.W.2d 517, 520 (Tex.1995). If a written contract is so worded that it can be given a certain or definite legal meaning or
18 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
dism’d). Only where a contract is determined to be ambiguous after application of the rules of construction may the courts consider
parol evidence of the parties’ interpretations.
Nat’l Union,
907 S.W.2d at 520;
Sun Oil Co.,
626 S.W.2d at 732. Where there is a
broad arbitration clause, arbitration of a particular grievance should not be denied unless it can be said with positive assurance that
the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.
Kline v. O’Quinn,
874 S.W.2d 776,
782 (Tex.App.-Houston [14th Dist.] 1994, writ denied),
cert. denied,
515 U.S. 1142, 115 S.Ct. 2579, 132 L.Ed.2d 829 (1995).
FN8. Appellee Osama is proceeding pro se on appeal and has not filed an appellee’s brief.
As mentioned earlier, the trial court determined the parties’ signatures on the *412 Arbitration Agreement were authentic.
Appellants were not required to offer additional evidence in order for the trial court to make a ruling regarding the validity of the
Agreement.
See Jack B. Anglin Co.,
842 S.W.2d at 269. Applying contract construction principles, we must review the entire
Arbitration Agreement to determine whether it is so worded that it can be given a certain or definite legal meaning or interpretation.
pending the decision of the arbitrators, and will ask the courts to refer the cases for arbitration within seven days from the
establishment of the panel of arbitrators. Further, “[t]he assignment must include ALL cases, including those filed against or on
behalf of other family members related to the parties.”
[23] The Arbitration Agreement does not contain any language purporting to except the applicability of the Agreement to certain
issues, causes of action, or claims between the parties.
FN9. The court held the Islamic Marriage Certificate was unenforceable, the house on Gladstone Drive is the separate
property of Jamal, the house on Vesta Via Court belongs to Osama, and two certificates of deposit were never the
community property of Rola and Jamal and belong solely to Osama.
The divorce case:
Rola and Jamal:
Each wants to be appointed sole managing conservator of the two children, with the possessory conservator
on the application and denied it on February 27, 2002; Jamal was ordered to pay the grandparents’ attorney $3,350 in attorney’s
fees. The next day, Jamal filed a notice of appeal from the master’s recommendation. The record before us does not contain any
further orders or judgments in this case.
As evidenced by a review of the issues that have yet to be addressed by the trial court in these two cases, the parties still had
much to resolve on the date the Arbitration Agreement was signed.