Ellis, et al. v. Dr. Schlimmer, et al.

The court of appeals dismissed an interlocutory appeal of the trial court's order denying the defendants' motion to compel arbitration for want of jurisdiction because the movants failed to establish that the Federal Arbitration Act (FAA) did not apply. While appellants did not specifically invoke the Texas Arbitration Act (TAA) in their motion to compel arbitration, their counsel specifically referred to it in the hearing on the motion. The burden was on the appellees to show that some Texas state law or statutory requirement would prevent enforcement of the arbitration agreement under the TAA so that the FAA would pre-empt the Texas act. They did not raise any such defenses, nor did they question the agreement's existence. Instead, they argued merely that the agreement did not cover the dispute, and that appellants had waived the right to arbitration or were estopped from enforcing it. The court of appeals' decision erroneously placed the burden to establish the absence of any defenses to arbitration on appellants. Accordingly, under Texas Rules of Appellate Procedure Rule 59.1, without hearing oral argument, the court of appeals' judgment is reversed and remanded to that court to allow it to consider the appeal's merits. Texas Supreme Court, No. 10-0243, 04-01-2011