Monday, August 31, 2009

Bill of Review Order Vacating Arb Confirmation Judgment Not Appealable

In a case decided last week, the Fourteenth Court of Appeals in Houston ruled that an order vacating an underlying judgment confirming an arbitration award in a bill-of-review proceeding was not appealable under the Texas General Arbitration Act provision that authorizes interlocutory appeal under some circumstances. While the challenged order vacated the confirmation of the arb award, it did not determine the issue of validity and whether the arbitration award should ultimately be confirmed. The challenge was brought by a nonparty who took the position that it was a necessary party, and should have been given an opportunity to be heard, as grounds for relief via bill of review. Nor was the challenged order final for purposes of a regular appeal. The attempted interlocutory appeal was thus dismissed for want of jurisdiction in the absence of any statutory authorization.

Rapid Settlements Ltd. v. Allstate Settlement Corp. (Tex.App.- Houston [14th Dist.] Aug. 27, 2009) (per curiam) (order confirming arbitration award set aside on petition for bill of review, interlocutory order vacating the prior confirmation judgment did not adjudicate the validity of the arbitration award, was not final, and was not appealable under any statute authorizing interlocutory review



This is an attempted appeal from an order vacating a judgment that confirmed an arbitration award. In the underlying case, appellant Rapid and appellee Ward participated in an arbitration proceeding resulting in an award in favor of Rapid. Rapid filed a petition to confirm the arbitration award, which the trial court granted. On June 9, 2005, the trial court entered a judgment confirming the arbitration award in trial court cause number 839254. Appellees Allstate Settlement Corporation and Allstate Life Insurance Company (jointly referred to as Allstate) were not parties to the arbitration agreement. After learning of the judgment confirming the arbitration award, Allstate filed a bill of review contending that it was a necessary party, had not been served with citation, and received no notice of the arbitration proceedings. Allstate asked the court to vacate the judgment. On March 28, 2008, the trial court granted the bill of review and ordered the final judgment in cause number 839254 vacated. Rapid then brought this appeal.

A bill of review that sets aside a prior judgment but does not dispose of all the issues in the case on the merits is interlocutory. Kiefer v. Touris, 197 S.W.3d 300, 302 (Tex. 2006). Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed only if permitted by statute. Bally Total Fitness Corp. v. Jackson,53 S.W.3d 352, 352 (Tex. 2001)Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding).

The Texas General Arbitration Act makes certain orders appealable, including an order "vacating an [arbitration] award without directing a rehearing." Tex. Civ. Prac. & Rem. Code Ann. § 171.098(a)(5) (Vernon 2005). In the underlying case, the trial court confirmed the arbitration award. In the bill of review proceeding, the arbitration award was vacated, but the court's ruling was not based on the provisions in the Texas General Arbitration Act for vacating such an award. SeeTex. Civ. Prac. & Rem. Code Ann. § 171.088 (Vernon 2005). Therefore, section 171.098 does not apply to provide for an interlocutory appeal under these facts. See Rapid Settlements, Ltd. v. Allstate Life Ins. Co., No. 01-08-00381-CV, 2009 WL 1331580 (Tex. App.-Houston [1st Dist.] May 8, 2009, no. pet.) (mem. op.) (dismissing appeal from bill of review vacating arbitration award as interlocutory).

As in the similar case before our sister court of appeals, when the trial court granted Allstate's bill of review, it vacated the underlying judgment in Rapid's confirmation proceeding but did not rule on the petition for confirmation itself. The arbitration award is undisturbed. The order does not reflect that it is intended to be a final judgment. See Lehmann, 39 S.W.3d at 205 (holding that an order entered in a proceeding other than a trial on the merits may be considered final if it clearly and unequivocally states that the trial court intended the order to completely dispose of the entire case). The order appealed in this case is interlocutory and no statute makes it appealable. See Rapid Settlements, No. 01-08-00381-CV, 2009 WL 1331580 at *3.

On August 4, 2009, notification was transmitted to the parties of this court's intention to dismiss the appeal for want of jurisdiction unless appellant filed a response demonstrating grounds for continuing the appeal on or before August 17, 2009. See Tex. R. App. P. 42.3(a). No response was filed.

Accordingly, the appeal is ordered dismissed.

DISPOSITION: APPEAL DISMISSED: Per Curiam Opinion of the Fourteenth Court of Appeals Panel members: Chief Justice Adele Hedges, Justices Leslie Brock Yates and Kem Frost No. 14-08-00394-CV Full case style: Rapid Settlements LTD v. Allstate Settlement Corporation, Allstate Life Insurance Company, and Andino Ward Court below: Appeal from County Civil Court at Law No 4 of Harris County, Texas (Houston) Trial Court Judge: Hon. Roberta Anne Lloyd 

RELATED TERMS: challenging arbitration by bill of review, finality, final orders, appealable and unappealable orders relating to arbitration, interlocutory appeals, interlocutory appeal of arbitration-related orders, arbitration and interlocutory appeals.