COLISEUM FORD INC Plaintiff-Counter v. Ford Dealer Computer Services Inc, also known as Dealer Computer Services Inc

*Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-20318
_____________________
COLISEUM FORD INC
Plaintiff-Counter Defendant–Appellee,
v.
FORD DEALER COMPUTER SERVICES INC, also known as Dealer Computer
Services Inc
Defendant-Counter Claimant– Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
No. H-01-CV-2293
_________________________________________________________________
January 8, 2003
Before KING, Chief Judge, and DEMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Ford Dealer Computer Services, Inc. (DCS) seeks to recover
damages from Coliseum Ford Inc. (Coliseum Ford) for breach of a
long-term computer contract (the Agreement). The Agreement
contains an arbitration clause which is set out below. DCS filed
an arbitration demand, following which Coliseum Ford filed an
application to stay arbitration in a Texas state district court.

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The suit was removed to federal district court, and DCS then
filed a motion to compel arbitration. The district court agreed
with Coliseum Ford that the dispute was not arbitrable and denied
DCS’s motion to compel arbitration. DCS appeals. We reverse.
Respectfully, we disagree with the district court’s
interpretation of the arbitration clause in the Agreement, which
reads as follows:
Except as provided otherwise in this Agreement, all
disputes, claims, controversies and other matters in
question between the parties to this Agreement, arising
out of, or relating to this Agreement, or to the breach
thereof, including any claim in which either party is
demanding monetary damages of the nature including
negligence, strict liability or intentional acts and
omissions by either party, and which cannot be resolved
by the parties, shall be settled by arbitration in
accordance with the arbitration procedure described
below. Collection of any accrued amounts owed by
Dealer to FDCS (and not disputed in writing with
specificity within a reasonable period from the invoice
date) shall not be subject to this arbitration
procedure. This arbitration procedure shall in no way
limit FDCS’ remedies as provided in Section 12.
As we read the clause, the sentence excepting from arbitration
collection of accrued amounts owed by Coliseum Ford to DCS is
designed to deal with the collection of undisputed amounts
regularly invoiced under the Agreement. The fact that it speaks
in terms of “collection,” “not disputed” and “invoice” supports
that interpretation. The clause is not designed to deal with
what is essentially a breach of contract claim, as to which the
amount of damages owing is disputed and which is not the subject
of an invoice.

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Accordingly, we reverse the order of the district court
entered February 14, 2002 denying DCS’s motion to compel
arbitration and remand for entry of an order compelling
arbitration. Costs shall be borne by Coliseum Ford.
REVERSED.

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