Oak Creek Homes, LP and 21st Mortgage Corporation v. Joe and Brenda Moore
11-15-00291-CV
| Tex. App. | Nov 30, 2016Background
- Joe and Brenda Moore purchased a manufactured home from Oak Creek and financed it through 21st Mortgage; they sued both for breach of warranty and DTPA violations.
- The Moores had signed arbitration agreements with Oak Creek (via Nationwide Housing) and with 21st Mortgage; the parties entered an agreed order (Oct. 16, 2012) abating the case and compelling arbitration.
- During arbitration the arbitrator withdrew after a claimed conflict; the Moores moved to rescind the agreed arbitration order. The trial court granted the motion to rescind and set the case for trial (Oct. 27, 2015).
- Oak Creek and 21st Mortgage filed a joint notice of interlocutory appeal (Nov. 16, 2015) challenging only the Oct. 27 order. They did not file motions to compel in the trial court until Dec. 3 (Oak Creek) and Dec. 7 (21st Mortgage), and the trial court denied those motions (Dec. 8, 2015).
- Appellants later sought to add the Dec. 8 order to their appeal (motion to amend filed after oral argument); they also filed a mandamus petition challenging the Dec. 8 denial. The appellate court denied leave to amend the notice of appeal and dismissed the interlocutory appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the appellate court have interlocutory jurisdiction under Tex. Civ. Prac. & Rem. Code § 51.016 / 9 U.S.C. § 16 to review the trial court’s Dec. 8, 2015 denial of motions to compel arbitration (FAA-governed agreements)? | Moores: § 51.016 does not permit interlocutory appeal for FAA cases; mandamus is appropriate. | Appellants: § 51.016 and § 16 allow interlocutory appeal of denial of motions to compel arbitration under the FAA. | Court: Generally § 51.016 provides interlocutory relief for FAA cases, but Appellants failed to timely invoke that remedy for the Dec. 8 order, so no jurisdiction. |
| May Appellants amend their Nov. 16, 2015 notice of appeal (filed before the Dec. motions) after submission to include the Dec. 8 order? | Appellants: Leave to amend should be granted to cover the Dec. 8 denial. | Moores: Amendment is untimely and impermissible; notice must specify the order appealed. | Court: Denied leave; Rule 25.1 does not permit changing an appeal to a different, later interlocutory order after submission; amendment was untimely, so no jurisdiction over Dec. 8 order. |
| Is the Oct. 27, 2015 rescission order reviewable as an interlocutory appeal when Oak Creek had not filed a motion to compel before that order? | Appellants: The rescission effectively ends arbitration and should be appealable under § 51.016 / § 16. | Moores: The order rescinded the agreed arbitration order but did not expressly deny a motion to compel; Oak Creek had not filed a motion earlier. | Court: No jurisdiction as to Oak Creek; an appellant must have filed a motion/petition to compel in the trial court before seeking interlocutory review—Oak Creek filed its motion only later. |
| Is the Oct. 27, 2015 rescission order reviewable as to 21st Mortgage, which had a 2012 motion to compel on file? | Appellants: The rescission had the practical effect of preventing arbitration and is subject to interlocutory review. | Moores: The Oct. 27 order did not expressly deny 21st Mortgage’s 2012 motion to compel, and 21st Mortgage did not ask the court to rule on that motion at the rescission hearing. | Court: No jurisdiction; strict construction of § 51.016 requires the order to be one that denies a petition/application to compel—here the Oct. 27 order granted the Moores’ rescission motion and did not explicitly deny the earlier motion to compel. |
Key Cases Cited
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (standards for mandamus: clear abuse of discretion and lack of adequate appellate remedy)
- CMH Homes v. Perez, 340 S.W.3d 444 (Tex. 2011) (statutes permitting interlocutory appeals must be strictly construed; identify nature of order appealed)
- Atlas Gulf-Coast, Inc. v. Stanford, 299 S.W.3d 356 (Tex. App.—Houston [14th Dist.] 2009) (no interlocutory jurisdiction where appellant never filed a motion to compel arbitration)
- In re Santander Consumer USA, Inc., 445 S.W.3d 216 (Tex. App.—Houston [1st Dist.] 2014) (mandamus denied where appellant had adequate interlocutory appeal remedy under § 51.016)
- In re Arroyo, 988 S.W.2d 737 (Tex. 1998) (appellate rules provide adequate appellate remedies comparable to mandamus)
- ReadyOne Indus., Inc. v. Guillen-Chavez, 394 S.W.3d 724 (Tex. App.—El Paso 2012) (no interlocutory jurisdiction where trial court deferred ruling on motion to compel despite arbitration-related discovery)
- Beldon Roofing Co. v. Sunchase IV Homeowners’ Ass’n, Inc., 494 S.W.3d 231 (Tex. App.—Corpus Christi 2015) (declining to interpret earlier orders as denying arbitration for purposes of interlocutory jurisdiction)