523 S.W.3d 203
Tex. App.2017Background
- Parents' 2010 divorce decree required mediation and, if needed, arbitration for child‑custody disputes; named Coye Conner Jr. as arbitrator (with an undefined "emergency" exception).
- Father sought emergency arbitration in 2012 and Conner issued an emergency arbitration order temporarily suspending Mother's possession and authorizing school not to release the child to Mother; Mother participated and did not timely object to Conner's role.
- Subsequent proceedings were sporadic; Mother later filed (2013) a trial‑court motion to remove the arbitrator, arguing he exceeded his authority; the trial court held a hearing in 2015.
- In November 2015 the trial court found Conner exceeded authority, vacated the emergency order, removed Conner, and appointed Brian Webb; that interlocutory appeal was dismissed for lack of jurisdiction.
- In June 2016 the trial court referred pending issues to arbitration before Webb. Father petitioned for mandamus seeking reinstatement of Conner and vacation of the removal/appointment orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court could remove parties' chosen arbitrator and appoint substitute | Father: Trial court lacked authority; contract limited court appointment to situations where arbitrator is "unable" to serve | Mother: Court could remove/replace under TGAA sections for excess of authority and vacatur/rehearing provisions | Court held trial court abused discretion: contract did not allow removal because Conner was not "unable" to serve and statutory bases did not authorize appointment here |
| Whether parties waived arbitration or Conner's authority by conduct | Father: Mother participated without timely objection, so cannot later attack arbitrator selection | Mother: Arbitrator exceeded authority in issuing emergency order and misstyled order | Court held participation undermines collateral attack; excess‑authority claim did not justify removing arbitrator under the agreement |
| Proper interplay of Family Code ADR provisions and TGAA | Father: Family Code provisions are augmented by TGAA; TGAA governs judicial review/roles unless irreconcilable | Mother: Relied on TGAA vacatur/rehearing provisions to justify replacement | Court held Family Code provisions operate alongside TGAA but TGAA does not empower court to override explicit contractual appointment absent statutory triggers not present here |
| Relief by mandamus (adequate remedy by appeal) | Father: Removal denies contracted arbitration rights, making appeal inadequate; mandamus appropriate | Mother: Trial court's orders subject to appeal | Court held mandamus appropriate because trial court's appointment deprived Father of contracted‑for arbitrator and appeal is inadequate |
Key Cases Cited
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (mandamus standards—abuse of discretion and adequacy of appeal)
- In re Serv. Corp. Int’l, 355 S.W.3d 655 (Tex. 2011) (no adequate remedy by appeal when court denies contracted arbitration)
- J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) (arbitration agreements interpreted as contracts)
- In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379 (Tex. 2005) (definition of trial‑court abuse of discretion in mandamus context)
- Austin Commercial Contractors, L.P. v. Carter & Burgess, Inc., 347 S.W.3d 897 (Tex. App.—Dallas 2011) (trial court abused discretion by ordering arbitration under rules different from the agreement)
- In re Nat’l Health Ins. Co., 109 S.W.3d 552 (Tex. App.—Tyler 2002) (trial court cannot modify/contravene explicit arbitration contract terms)
- Hall Street Assocs. v. Mattel, 552 U.S. 576 (2008) (limits on parties' ability to alter arbitration judicial‑review standards)
- De la Rama v. De la Rama, 201 U.S. 303 (1906) (scope of federal arbitration law relative to domestic family matters)