In re Bill Heard Chevrolet, LTD--Appeal from 268th District Court of Fort Bend County

Opinion issued November 30, 2006

In The

Court of Appeals

For The

First District of Texas

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NO. 01-06-00324-CV

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IN RE BILL HEARD CHEVROLET, LTD., Relator

Original Proceeding on Petition for Writ of Mandamus

CONCURRING OPINION

I join the panel opinion. I write separately to point out that this case illustrates the inequity and enormous waste of judicial and legal resources that have followed on the supreme court's determination in Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266 (Tex. 1992), that a state court order granting or denying a motion to compel arbitration under the Federal Arbitration Act (FAA) must be reviewed by mandamus and not by interlocutory appeal. Id. at 272. The court reasoned that although the FAA itself provides for interlocutory review of orders on motions to compel arbitration, Texas state court procedure, not federal procedure, governs in state court and Texas law does not provide for interlocutory appeal of an order under the FAA, only for interlocutory appeal of an order under the Texas Arbitration Act (TAA). Id. at 271-72. Thus, if a motion to compel arbitration under the FAA is heard in state court, only mandamus is available to protest the trial court's order, even though if the same case were brought under the FAA in federal court, interlocutory appeal would be available, and if the same case were brought under the TAA, interlocutory appeal would be available.

As the supreme court acknowledged in Jack B. Anglin, litigants who allege entitlement to arbitration under the FAA, or in the alternative under the TAA, "are burdened with the need to pursue parallel proceedings--an interlocutory appeal of the trial court's denial under the Texas Act, and a writ of mandamus from the denial under the Federal Act." Id. Although the court opined, "[W]e can conceive of no benefit from such an unnecessarily expensive and cumbersome rule," it concluded, that it could "not enlarge appellate jurisdiction absent legislative mandate." Id. Therefore, it urged the Legislature "to consider amending the Texas Act to permit interlocutory appeals of orders issued pursuant to the Federal Act." Id. It urged in vain.

To date, 1182 cases have cited to Jack B. Anglin. Many of these cases have involved situations where the applicability of the FAA was uncertain. In these cases, not only must litigants go to the expense of two sets of filings, and reviewing courts go through a two-fold process of review just to determine the fundamental nature of their jurisdiction, but there are hidden risks in requiring the filing of a mandamus in FAA cases, which this case illustrates. Specifically, the mandamus record may be incomplete because, as here, no signed order or evidence to resolve the mandamus is included with the petition, whereas an interlocutory appeal could simply be decided on the law.

Moreover, unlike review of an appeal, the court of appeals is not required to issue a written opinion explaining its denial of mandamus relief. Compare Tex. R. App. P. 52.8(d) ("When denying relief [in an original proceeding], the court may hand down an opinion but is not required to do so."), with Tex. R. App. P. 47.1 (requiring written opinion "that addresses every issue raised and necessary to final disposition of the appeal"). Thus, not only may the reviewing court in a mandamus proceeding fail to reach the merits of the trial court's order compelling or denying arbitration under the FAA, it is not even required to tell the litigants that their mandamus failed for want of a complete record, or perhaps because the petition was not verified, rather than for want of a meritorious argument--thus inviting repetition of the error.

Like the supreme court writing 14 years ago in Jack B. Anglin, I "can conceive of no benefit from such an unnecessarily expensive and cumbersome rule," but I recognize that the courts "may not enlarge appellate jurisdiction absent legislative mandate." 842 S.W.2d at 273. Therefore, I second the supreme court's request that the Legislature amend the TAA to permit interlocutory appeals of orders issued pursuant to the FAA.

Evelyn V. Keyes

Justice

Panels consists of Justices Taft, Keyes, and Hanks.

Justice Keyes, concurring.