v. Intern. Aviation Underwriters, 604 S.W.2d 239, 242 (Tex.Civ.App. 1980).
Cindy's Candle never argues that Article XXII's phrases purporting to subject "any and all disputes" and "any claims" to arbitration are ambiguous. The company suggests instead that the court should insert the phrase "pertaining to this contract" after these phrases, as that is what the parties intended. Under Texas law, this court could insert such a phrase only if, upon reading Article XXII, considering it "in the light of the surrounding circumstances," and applying the "pertinent rules of construction thereto," it is clear that the parties intended to insert this limiting language. Pinehurst, 432 S.W.2d at 519. Otherwise, the court must not insert this language, as it would alter the ordinary meaning of the words which the parties actually employed. See Praeger v. Wilson, 721 S.W.2d 597, 601 (Tex App. 1986) (refusing to insert restrictive language into unambiguous contract granting interest in property subject to "any and all subsequent agreements" of the parties); Glenn v. Gidel, 496 S.W.2d 692, 702 (Tex.Civ.App. 1973) (refusing to insert language into unambiguous franchise agreement's cancellation clause in order to restrict right of cancellation to 90-day period following execution of agreement).
Unfortunately for the parties, they will have to brief this matter further. The court had requested supplemental briefs on all of the issues raised under Texas law, but allowed only five pages for the parties to do this. Cindy's Candle suggested in its supplemental brief that circumstances were such that the parties intended to insert limiting language, and that, moreover, such insertions are necessary to avoid violating Texas and Illinois franchise laws. Given that the prior agreements did not have arbitration clauses, and that the March, 1986 agreement granted a license to only one store, these arguments could have merit. The parties will thus have one last opportunity to address the arbitration issue.
Before sending the parties to do more research on Texas law, the court will address two other questions relating to Article XXII. Cindy's Candle suggests first that the parties did not agree to submit claims of the type which Cindy's Candle has brought before this court, and directs the court to Article XXII's phrase "except as to monies owed." Cindy's Candle suggests that all of its claims concern monies owed, as it seeks money damages in each count of its Amended Complaint. This argument assumes that a request for money damages is a request for monies owed. It is not. Damages are "the estimated reparation in money for detriment or injury sustained: compensation or satisfaction imposed by law for a wrong or injury caused by violation of a legal right." Monies owed, by contrast, are amounts which one "is under an obligation to pay or repay in return for something received" or "is indebted in the sum of." Webster's Third New International Dictionary (1966). Damages do not become "monies owed" until a court reduces them to judgment -- that is, declares them "owing." Under these common definitions, Cindy's Candle's claims for damages are not demands for "monies owed."
Cindy's Candle's second argument is that under federal law, its antitrust claims cannot be arbitrated notwithstanding the parties' agreement to arbitrate. This was formerly the law in this Circuit, under cases such as University Life Ins. Co. of America v. Unimarc, Ltd., 699 F.2d 846 (7th Cir. 1983). There Judge Posner, writing for the court, noted that antitrust disputes "are considered to be at once too difficult to be decided competently by arbitrators . . . and too important to be decided otherwise than by competent tribunals." The Judge declared further that the "root" of this principle "is in the same soil as the principle . . . that federal antitrust suits may not be brought in state courts." Id. at 851.
Apparently the Seventh Circuit has since discovered that the soil which nourished the principle of non-arbitrability of antitrust claims no longer supports the number of doctrines which it once declared grew there. In dicta in Kowalski v. Chicago Tribune Co., 854 F.2d 168, 173 (7th Cir. 1988), Judge Posner girdled the tree which he had fertilized in University Life, stating that "it seems unlikely" after Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987), that domestic antitrust claims could continue to be non-arbitrable. In light of the aspersions cast upon the non-arbitrability doctrine in Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614, 632-36, 87 L. Ed. 2d 444, 105 S. Ct. 3346, (1985), this court will adopt the Seventh Circuit's suggestion in Kowalski, and not withhold Cindy's Candle's antitrust claims from the arbitrators on grounds of federal law.
In summary, the court requests further briefing on whether, under Texas contract law, Article XXII's language covering "any and all disputes" and "any claims" covers disputes arising under the parties' previous agreements, in light of the surrounding circumstances and pertinent rules of construction. The clerk will set an appropriate briefing schedule. Cindy's Candle will have the first word.
DATE: June 14, 1989
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