TCP Holdings v. Kirk8/31/2000
Appellants, TCP Holdings, L.L.C., Robert B. Neely, and David A. Thomas (collectively "TCP"; the corporation itself shall be referred to as "TCP Holdings") seek relief from the trial court's order denying their motion to abate certain tort claims brought against them by appellee Tim D. Kirk. Neely, Thomas, and Kirk were members, principals, and managing directors of TCP Holdings, a Delaware corporation engaged in commercial real estate management and investment. The three principals entered into a contract captioned the Second Amended and Restated Regulations (the "Regulations") to preserve their respective interests in TCP Holdings and their rights to control the corporation. The Regulations contained an arbitration clause. A dispute arose between Kirk, on one side, and Neeley and Thomas, on the other. Kirk sued, naming TCP Holdings, Neeley, and Thomas as defendants and asserting both contract and tort claims. TCP moved to abate the case and to arbitrate Kirk's claims. The trial court signed an order granting the abatement of all claims except the claims for slander and intentional infliction of emotional distress.
TCP filed a petition for writ of mandamus, cause no. 05-99-01994-CV, styled In re TCP Holdings, L.L.C., et al., claiming that the trial court abused its discretion under the Federal Arbitration Act in refusing to abate Kirk's tort claims for arbitration. TCP also perfected an interlocutory appeal from the order, cause no. 05-99-01945-CV, styled TCP Holdings, L.L.C., et al., v. Kirk. In a single issue, TCP contends that the trial court erred, as a matter of law, in not enforcing an arbitration clause pursuant to the Texas General Arbitration Act that covered all of Kirk's claims. We consolidated the mandamus proceeding into the appeal. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992).
We dismiss the appeal for want of jurisdiction and conditionally grant the writ of mandamus.
Background
Neely, Thomas, and Kirk formed TCP Holdings on January 1, 1997. Neely and Thomas became dissatisfied with Kirk's performance and, on November 3, 1998, Kirk agreed that "it best we separate from each other as you suggest." On November 9, 1998, in his capacity as director, Neely moved to terminate Kirk's employment, but Kirk protested that, according to the Regulations, his employment could be terminated only for cause. On November 12, Neely and Thomas voted to remove Kirk as an officer of TCP Holdings, which the Regulations permitted them to do.
Thomas's former sister-in-law, Christine Stafford, was an employee with TCP Holdings in Austin. She visited Kirk in his hotel room when he was in Austin on business, and he allegedly exposed himself to her, forced her to touch his genitals, and told her that she could pay him back for a recent pay raise by having sex with him. Stafford reported the alleged incident to Thomas. He, in turn, hired two separate employment law firms to investigate. According to TCP, the investigation corroborated Stafford's story; according to Kirk, the investigation exonerated him. Still unable to terminate Kirk's employment, Thomas and Neely suspended his pay, ordered him to remove his personal belongings from the TCP Holdings premises, and locked him out. Meanwhile, Stafford resigned from her employment with TCP Holdings on December 4, 1998, and shortly thereafter left the state.
On November 18, 1998, Kirk demanded that the dispute between TCP and him be submitted to arbitration insofar as the dispute concerned TCP Holdings' ownership and control and Kirk's employment by the company. The parties initiated the arbitration process. On February 10, 1999, Kirk sued TCP Holdings; he did not name Neely or
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