Appeal from the 11th District Court Harris County, Texas
Trial Court Case No. 2016-39514.
consists of Chief Justice Radack and Justices Brown and
Russell Lloyd, Justice.
Jeff Fisher, individually and derivatively on behalf of
Blavesco Limited, challenges the trial court's denial of
his motion to compel arbitration in this interlocutory appeal
arising out of a shareholder derivative suit brought by
appellee Heather Carlile, individually and derivatively on
behalf of Blavesco Limited. We reverse the trial court's
order and render judgment granting the motion to compel
began investing in real property in the Houston area in 2008
through a number of limited liability companies (the LLCs).
By 2012, the LLCs had acquired over seventy properties worth
in excess of $10 million.
purchased an additional fifteen properties on behalf of one
of the LLCs in 2012. Carlile acted as a sales agent for the
seller with respect to that transaction and was subsequently
hired by Fisher to manage these properties.
Limited was incorporated in July 2013. The purpose of the new
company was to manage some of the properties controlled
though the LLCs and, in the future, to act as a non-exclusive
real estate broker for the purchase and sale of property.
August 2013, Fisher and Carlile executed a Shareholder's
Agreement with respect to the newly formed Blavesco. Under
the terms of the Agreement, Fisher has the sole Class A
voting and management share, and Fisher and Carlile each have
one Class B non-voting beneficial share. Fisher is
Blavesco's sole director with the right to control the
compensation for any directors, officers, managers, and
employees of the company. Id. The Agreement contains
a requirement that all disputes be arbitrated. Specifically,
the Agreement states:
This Agreement shall be governed by and interpreted in
accordance with the substantive laws of the State of Texas,
United States of America and all disputes arising in
connection thereto shall be finally settled by arbitration.
The arbitration shall be held at the American Arbitration
Association (www.adr.org) and conducted in
accordance with its rules.
January 2016, Fisher created a new company called
Independence Construction & Finance, Inc. to act as a
hard money lender for residential construction. Carlile,
however, claims that Independence competes with Blavesco and
that Fisher created Independence in order to funnel
Blavesco's business away from Carlile.
8, 2016, Carlile filed this suit against Fisher and
Independence alleging causes of action for breach of
fiduciary duty, misappropriation of trade secrets, breach of
contract, tortious interference, unjust enrichment, and
common law fraud. Carlile also included in her petition an
application for a temporary restraining order, a temporary
injunction, and a permanent injunction. Carlile requested
said injunctive relief in order to prevent Fisher and
Independence from "unlawfully interfering with
Blavesco's business Operations." Carlile also sought
declaratory relief, punitive damages, and attorney's
filed a first amended petition adding the LLCs as defendants
and asserting claims against them for breach of contract,
fraud, unjust enrichment, conspiracy to commit fraud, breach
of fiduciary duty, and aiding and abetting Fisher in
committing fraud and breaching his fiduciary duties.
8, 2016, the trial court granted Carlile's application
for a temporary restraining order against Fisher and
Independence and granted Carlile's motion for expedited
discovery against Fisher and Independence. Pursuant to that
order, Carlile ...