Can an order compelling arbitration be challenged by immediate appeal?

No immediate appellate review of trial court order sending parties to arbitration either under the FAA or the TAA. Interlocutory appeal not authorized under such circumstances (as opposed to an order denying a motion to compel arbitration). Bashaw v Republic State Mortgage Co, No 01-14-00427-CV (Tex.App.- Houston [1st Dist.] Sep. 4, 2014) 

FRANCIS BASHAW

v.

REPUBLIC STATE MORTGAGE CO

No. 01-14-00427-CV

Opinion issued September 4, 2014.

Court of Appeals of Texas, First District, Houston 

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

First Court of Appeals (Old Harris County Courthouse) 

PER CURIAM MEMORANDUM OPINION

Appellant, Francis Bashaw, attempts to appeal from the trial court's April 25, 2014 order staying this case and granting Republic State Mortgage Co.'s motion to compel arbitration. Appellee, Republic State Mortgage Co., has filed a "Motion to Dismiss for Lack of Jurisdiction Pursuant to Rule 42.3(a)." We grant the motion and dismiss this appeal.

Bashaw entered into a "Branch Agreement" with Republic State Mortgage in 2006. On September 22, 2011, Bashaw filed suit against Republic State Mortgage, alleging breach of fiduciary duty, fraud by nondisclosure, and defalcation. On October 25, 2011, Republic State Mortgage filed a motion to dismiss or, in the alternative, to stay and compel arbitration. On September 21, 2012, the trial court granted the motion to stay, referred the case to arbitration, and stayed the case for six months. On June 11, 2013, Republic State Mortgage filed an amended motion to stay and to compel arbitration. The trial court granted the amended motion on April 25, 2014, again staying the case for six months and referring the claims to arbitration. On May 14, 2014, Bashaw filed a notice of appeal from the trial court's April 25, 2014 order.

On July 9, 2014, Republic State Mortage filed a motion to dismiss this appeal for lack of jurisdiction. In the motion, Republic State Mortgage argues that the trial court's April 25, 2014 order is a non-appealable interlocutory order, and that we therefore have no jurisdiction over this appeal. Bashaw has not responded to the motion.

"Whether under the Texas Arbitration Act or the Federal Arbitration Act, there is no interlocutory appeal over an order granting a motion to compel arbitration. As a result, we have no jurisdiction over this appeal and must dismiss it." Koontz v. Citibank (South Dakota), N.A., No. 01-05-01140-CV, 2007 WL 1299674, at *1 (Tex. App.-Houston [1st Dist.] May 3, 2007, no pet.) (mem. op., internal citations omitted); see In re Gulf Exploration, LLC, 289 S.W.3d 836, 839-41 (Tex. 2009) (quoting Perry Homes v. Cull,258 S.W.3d 580, 586 n.13 (Tex. 2008)); Ortiz v. Junell Law Firm, No. 14-11-00805-CV, 2011 WL 5554620, at *1 (Tex. App.-Houston [14th Dist.] Nov. 15, 2011, pet. denied) (mem. op.).

Accordingly, we grant Republic State Mortgage's motion to dismiss and dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a). We dismiss any other pending motions as moot.

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STATUTORY BASIS FOR INTERLOCUTORY APPEAL 
FROM ORDER DENYING ARBITRATION 

In 2009, the Texas Legislature amended the Texas Arbitration Act to permit interlocutory appeals of orders denying motions to compel arbitration pursuant to the FAA. See Tex. Civ. Prac. & Rem. Code § 51.016 (West, Westlaw through 2013 3d C.S.); see also CMH Homes v. Perez, 340 S.W.3d 444, 448 (Tex. 2011) (construing section 51.016). If a matter is subject to the FAA, section 51.016 of the Texas Civil Practice and Remedies Code authorizes interlocutory appeals "to the court of appeals from the judgment or interlocutory order of a district court . . . under the same circumstances that an appeal from a federal district court's order or decision would be permitted by 9 U.S.C. Section 16." Tex. Civ. Prac. & Rem. Code § 51.016.

Trial court order compelling arbitration not immediately appealable

Can an order compelling arbitration signed by a trial judge be challenged in an immediate appeal so as to avoid the need to arbitrate? Generally no. Arbitration is favored. An order denying arbitration is a different matter. Texas statute authorizing interlocutory appeal tracks federal provision for such appeals.

Under the Federal Arbitration Act (FAA), an order compelling arbitration and granting a stay is not immediately reviewable. In re Gulf Exploration, LLC, 289 S.W.3d at 842; see 9 U.S.C.A. § 16(b)(1),(3)(West 2009)(interlocutory orders compelling arbitration and staying proceeding are not immediately reviewable under the FAA). Because such an order is not appealable under the FAA, it is not appealable under Section 51.016 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.016 (West Supp. 2012)(in matters subject to the FAA, an appeal is available only under the same circumstances that an appeal from federal district court's order would be permitted).

    MEMORANDUM OPINION FROM EL PASO   

In this employment-discrimination and -retaliation case, Benjamin Tice, Jr. appeals from the trial court's order granting El Paso Education Initiative, Inc. d/b/a Burnham Wood Charter School District's motion to compel arbitration and stay the proceedings. El Paso Education Initiative now moves to dismiss the appeal for want of jurisdiction.[1] Concluding that we lack jurisdiction over this appeal, we dismiss it.

It is well settled that appellate courts have jurisdiction over final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final if it disposes of all pending parties and claims. Id. An order compelling arbitration and staying proceedings pending arbitration does not dispose of all claims and parties. In re Gulf Exploration, LLC, 289 S.W.3d 836, 840-41 (Tex. 2009)(orig. proceeding). Thus, the trial court's order at issue here is interlocutory.

Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly confers appellate jurisdiction. See Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998). If a statute authorizes an interlocutory appeal, we strictly construe it. CMH Homes v. Perez, 340 S.W.3d 444, 447-48 (Tex. 2011); Nazareth Hall Nursing Ctr. v. Castro, 374 S.W.3d 590, 593 (Tex.App.-El Paso 2012, no pet.); Lucchese, Inc. v. Solano, 388 S.W.3d 343, 348 (Tex.App.-El Paso 2012, no pet.). The substance and function of the interlocutory order from which an appeal is taken controls our interlocutory jurisdiction. Castro, 374 S.W.3d at 593; Solano, 388 S.W.3d at 348; Texas La Fiesta Auto Sales, LLC v. Belk, 349 S.W.3d 872, 878 (Tex.App.-Houston [14th Dist.] 2011, no pet.). When a party attempts to appeal a non-appealable interlocutory order, we have no jurisdiction except to dismiss the appeal. Cantu Servs., Inc. v. United Freedom Assoc., Inc., 329 S.W.3d 58, 63 (Tex.App.-El Paso 2010, no pet.) [Quotation marks omitted].

Under the Federal Arbitration Act (FAA), an order compelling arbitration and granting a stay is not immediately reviewable. In re Gulf Exploration, LLC, 289 S.W.3d at 842; see 9 U.S.C.A. § 16(b)(1),(3)(West 2009)(interlocutory orders compelling arbitration and staying proceeding are not immediately reviewable under the FAA). Because such an order is not appealable under the FAA, it is not appealable under Section 51.016 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.016 (West Supp. 2012)(in matters subject to the FAA, an appeal is available only under the same circumstances that an appeal from federal district court's order would be permitted).

Here, both parties agreed at trial that the arbitration agreement was governed by the FAA, not the Texas General Arbitration Act (TAA).[2] The trial court's order compelling arbitration and staying the proceedings pending arbitration is therefore not reviewable by interlocutory appeal. We thus lack jurisdiction to consider Tice's appeal. Appellee's motion to dismiss the appeal for want of jurisdiction is hereby granted. Accordingly, we dismiss the appeal for want of jurisdiction.

SOURCE: EL PASO COURT OF APPEALS - No. 08-13-00014-CV – 1/13/2013

Party opposing arbitration has adequate remedy by appeal from final judgment; not entitled to instant mandamus relief, Texas Supreme Court rules

MANDAMUS REVIEW OF ORDER DENYING ARBITRATION VS. ORDER COMPELLING ARBITRATION - DISPARATE STANDARD APPLIED Texas Supreme Court sees less harm in wrongfully compelling arbitration, than in erroneously denying it; favors mandamus review of order denying motion to compel arbitration, but restricts availability of immediate mandamus relief against order compelling arbitration on finding that party opposing arbitration has adequate appellate remedy after the arbitration has taken place. Trial court properly stayed proceeding pending arbitration, rather than dismissing the case with final appealable order, thus setting stage for dispute over whether immediate appellate review of order sending the parties to arbitration could be sought (by petition for writ of mandamus). Court of Appeals granted mandamus relief to party resisting arbitration, only to be out-mandamused by the Texas Supreme Court, and ordered to withdraw its order. Arbitration to proceed in accordance with trial court's original order to compel. In Re Gulf Exploration, No 07-0055 (Tex. Apr. 17, 2009) ═══════════════════════════════ Justice Brister delivered the OPINION OF THE COURT: In In re Palacios, we held that mandamus relief was generally unavailable for orders compelling arbitration.[1] But we stopped short of saying it was never available, and noted the Fifth Circuit’s suggestion (which was not actually applied) in Apache Bohai Corp. v. Texaco China that mandamus review might be available if an applicant could show “clearly and indisputably that the district court did not have the discretion to stay the proceedings pending arbitration.”[2] As with any “narrow” provision for appellate review, numerous disappointed litigants have claimed the Apache Bohai “exception” applies to them.[3] But reviewing all arbitration orders to see if they comply with an exception “would inevitably frustrate Congress’s intent to move the parties . . . out of court and into arbitration as quickly and easily as possible.”[4] We granted oral argument to address more specifically when mandamus relief is available in connection with orders compelling arbitration. Finding it is unavailable here, we conditionally grant the writ. I. Background In this oil and gas suit, several working interest owners sued their operator, Great Western Drilling, when it drilled two successful wells for its own account nearby. They claim an opportunity to participate in those wells because Great Western had said it would protect their interests and had used confidential data they paid for. The parties’ joint operating agreements contain the following arbitration clause: Any dispute, controversy or claim arising out of or relating to this Agreement or the breach or validity thereof (“Dispute”) shall be referred to and finally settled by final and binding arbitration in Houston, Harris County, Texas . . . . The parties agree to use the Commercial Arbitration Rules of the American Arbitration Association and, to the maximum extent possible, the Federal Arbitration Act . . . . When the working interest owners demanded arbitration, Great Western filed this suit seeking a declaration that it owed the working interest owners neither arbitration nor anything on the underlying claim. The working interest owners moved to compel arbitration and stay litigation, which the trial court granted. Great Western sought mandamus relief in the court of appeals. That court recognized mandamus review was generally unavailable after Palacios, but found Great Western had satisfied Apache Bohai by showing the trial court had “clearly and indisputably” abused its discretion by compelling arbitration, so it conditionally granted mandamus relief.[5] The working interest owners seek relief from that order in this Court. II. Dismiss Instead Of Stay? In Green Tree Financial Corp. v. Randolph, the United States Supreme Court observed that the FAA “generally permits immediate appeal of orders hostile to arbitration . . . but bars appeal of interlocutory orders favorable to arbitration.”[6] Yet the FAA also allows appeal from “a final decision with respect to an arbitration.”[7] Construing the two together, the Supreme Court held there can be no immediate appeal of an order compelling arbitration if it stays the underlying case, but there can be an appeal if the underlying case is dismissed.[8] This appears to be the majority rule among the states as well. A few states have specific provisions for appealing orders compelling arbitration.[9] But most states (including Texas) have adopted the Uniform Arbitration Act, which like the FAA authorizes immediate appeal only from orders denying arbitration.[10] Nevertheless, a few Uniform Act states review all orders compelling arbitration,[11] and a few review none;[12] but most Uniform Act states follow Green Tree in allowing review if the order dismisses the case but not if it stays it.[13] We too have adopted this rule: “Courts may review an order compelling arbitration if the order also dismisses the underlying litigation so it is final rather than interlocutory.”[14] Thus, the order compelling arbitration in Childers v. Advanced Foundation Repair was immediately reviewable because the judgment stated that it was “final, disposes of all parties and all claims in this case, is appealable, and disposes of this case in the entirety.”[15] This is consistent with general Texas law that an order is final and appealable only if “it actually disposes of every pending claim and party or [ ] it clearly and unequivocally states that it finally disposes of all claims and all parties.”[16] At first blush, this rule appears to leave appellate review entirely at the discretion of the trial judge: stay the case and postpone review, or dismiss the case and allow it immediately. But in state courts this discretion is usually limited. Arbitrability is often the only issue in federal court because nondiverse parties may prevent removal of the underlying case from state court;[17] in such cases, even a stay order will be considered final if the federal action is effectively over.[18] But in the state courts, disputes about arbitrability and the merits must usually proceed in a single court under the rules of dominant jurisdiction.[19] Accordingly, a stay is generally the only appropriate order for a state court with jurisdiction of all issues. Indeed, the Texas Arbitration Act states that “[a]n order compelling arbitration must include a stay” of the underlying litigation.[20] During arbitration, a court order may be needed to replace an arbitrator,[21] compel attendance of witnesses,[22] or direct arbitrators to proceed promptly;[23] after arbitration, a court order is needed to confirm, modify, or vacate the arbitration award.[24] Consequently, dismissal would usually be inappropriate because the trial court cannot dispose of all claims and all parties until arbitration is completed.[25] It is in this context that one must read Apache Bohai C not as an all-purpose test for mandamus review, but as a test for reviewing whether the trial court should have dismissed rather than stayed the underlying case.[26] Palacios may have created some confusion on this issue, because after quoting Apache Bohai it went on to analyze whether the case was arbitrable rather than whether it should have been stayed. Accordingly, we clarify today that this “exception” applies not to the question whether an order compelling arbitration was correct, but to the question whether the case should have been dismissed rather than stayed. Here, the trial court stayed this case pending arbitration, so there is no final judgment. Great Western does not argue otherwise, or assert that the trial court erred in staying rather than dismissing this case. Accordingly, Apache Bohai does not apply. III. Mandamus Instead Of Interlocutory Appeal? Even when an order is not reviewable by interlocutory appeal, that does not always preclude review by mandamus.[27] In 1994, we authorized general mandamus review of orders either compelling or denying arbitration under the FAA.[28] But in Palacios we limited such review to orders denying arbitration, so that federal and state procedures would remain consistent after Green Tree.[29] We left open the question whether mandamus review of orders compelling arbitration should be entirely precluded, an issue we now address.[30] To be entitled to mandamus, “a petitioner must show that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal.”[31] In the context of orders compelling arbitration, even if a petitioner can meet the first requirement, mandamus is generally unavailable because it can rarely meet the second. If a trial court compels arbitration when the parties have not agreed to it, that error can unquestionably be reviewed by final appeal. In Perry Homes v. Cull, we rejected the argument that an order compelling arbitration must be reviewed before arbitration, noting that for many years this Court has reviewed such orders after arbitration in the final appeal.[32] Both federal and Texas statutes provide for vacating an arbitration award by final appeal if the arbitrators exceeded their powers.[33] If appeal is an adequate remedy for an order compelling arbitration, mandamus must be denied. There is no definitive list of when an appeal will be “adequate,” as it depends on a careful balance of the case-specific benefits and detriments of delaying or interrupting a particular proceeding.[34] But in balancing these matters, “our place in a government of separated powers requires us to consider also the priorities of the other branches of Texas government.”[35] Legislative acts encouraging or discouraging interlocutory review must weigh heavily in the balance of benefits and detriments.[36] Here, as both the federal and state arbitration acts pointedly exclude immediate review of orders compelling arbitration, any balancing must tilt strongly against mandamus review.[37] Of course, if an order compelling arbitration is wrong, the parties may waste time and money in arbitration. But standing alone, delay and expense generally do not render a final appeal inadequate.[38] That is especially true here because arbitration clauses are usually contractual and cover contractual claims. A party that prevails on a contractual claim can recover its fees and expenses,[39] even if they were incurred in collateral proceedings like arbitration.[40] The “adequacy” of an appeal may be a closer question when the legislature has weighed in on both sides of the balance. For example, we recently reviewed an order compelling arbitration in In re Poly-America, and granted mandamus relief regarding a waiver of statutory remedies, because it threatened to undermine the legislative workers compensation system as a whole.[41] By contrast, we denied mandamus relief as to other provisions because interference with the statute was no more than speculative.[42] The problem in Poly-America was that granting mandamus risked frustrating one statutory imperative, while denying it risked frustrating another. In those rare cases when legislative mandates conflict, mandamus “may be essential to preserve important substantive and procedural rights from impairment or loss, [and] allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments.”[43] But such conflicts are few, so the balance will generally tilt toward reviewing orders compelling arbitration only on final appeal. We recognize that any rule short of completely barring mandamus review runs the risk of delaying some arbitrations after a trial court has compelled them. Mandamus proceedings take time, even when relief is denied. But our rules allow an appellate court to deny mandamus relief without waiting for a response, and without handing down an opinion.[44] Summary denials do little to assist trial judges or explain matters to the parties, but they are especially appropriate in this context due to the legislative preference for moving cases to arbitration quickly. In this case, there are no counterbalancing legislative mandates. This arbitration agreement placed no limits on Great Western’s constitutional or statutory rights, other than the right to a jury trial that it expressly waived by agreeing to arbitration in the first place.The court of appeals believed this dispute was outside the scope of arbitration because the disputed wells were outside the parties’ area of mutual interest, and thus not within the scope of the arbitration clause.[45] But even assuming that is correct (an issue we do not reach), Great Western has not shown that its appellate remedy following arbitration is inadequate. Because it did not, the court of appeals erred in reviewing this order anyway. For the reasons stated above, we conditionally grant the petition for writ of mandamus. We direct the court of appeals to vacate its judgment and order the trial court to reinstate the order compelling arbitration. We are confident the court of appeals will comply, and our writ will issue only if it does not. _________________________ Scott Brister Justice OPINION DELIVERED: April 17, 2009 [footnotes omitted]