SOUTHEAST TEXAS RECORD

ORANGE -- After a quick trip to a higher court, a wrongful death trial against Yamaha can proceed next month as planned, now that the Ninth Court of Appeals of Texas has shot down the motor company's petition for mandamus.

Yamaha sought the petition after a lower court turned down its motion to arbitrate. On appeal, the company asserts it only recently became aware of its right to arbitratration. The appellate justices found that the lower court established that Yamaha had waived arbitration.

On behalf of their late son, the parents of Foerst Eddie Ray filed suit against the Yamaha Motor Corp. and its subsidiaries Nov. 5, 2007, in Orange County District Court.

In their suit, Johnny Ray and Dawn Wills claim the Rhino utility vehicle their son was riding when he crashed and died was defectively designed.

The lawsuit alleges the Rhino, a Yamaha built off-road vehicle, is prone to roll-overs and designed with poor safety considerations.

In its petition for writ of mandamus, Yamaha argued the trial court abused its discretion by denying its motion to compel arbitration and to stay the underlying litigation.

The motion, filed more than a year after the suit was filed, contended Johnny Ray, Foerst Eddie Ray's father, signed an arbitration agreement when he purchased the Rhino.

In attempt to avoid needless litigation, numerous dealerships ask customers to agree to an arbitration clause when purchasing a new vehicle.

Court documents show Johnny Ray's agreement to purchase the Rhino includes both an order form and a financing agreement. The financing agreement contains an arbitration clause.

On June 1, Yamaha filed its motion to compel arbitration and to stay further proceedings, court papers say. The parents filed a response, in which they contended that Yamaha had waived arbitration and invoked the judicial process.

Four weeks later, on June 30, the trial court signed an order denying Yamaha's motion, which led the company to appeal.

Court papers say Yamaha did not become aware of the arbitration clause until May or it would have filed the motion at the time of the suit's filling.

On July 16, Beaumont justices authored an opinion denying the Yamaha's appeal, ruling that the trial court was not required to believe or accept Yamaha's oversight.

"We conclude that there is evidence which, if believed by the trial court, established that (Yamaha) waived arbitration," the per curiam opinion states.

"Therefore, (Yamaha has) not demonstrated an abuse of discretion by the trial court for which there is no adequate remedy by appeal. Accordingly, we deny the petition for writ of mandamus. Likewise, we deny (Yamaha's) motion for temporary relief."

The trial is slated to take place on Aug. 17 in Judge Dennis Powell's 163rd Judicial Court in Orange County.

Yamaha is represented in part by attorneys David R. Montpas and Jeffrey S. Hawkins.

The plaintiffs are represented in part by attorneys Tim Maloney and Paul Campolo.

Appeals case No. 09-09-00313-CV
Trial case No. B-070626-C