Opinion issued=20
November 1, 2007
In=20
The
Court of =
Appeals
For =
The
First =
District of=20
Texas
NO. =
01-07-00356
THRIVENT FINANCIAL FOR LUTHERANS,=20
Appellant
V.
COLIN BROCK,
Appellee
On Appeal from County Court at=20
Law
Austin County, =
Texas
Trial Court Cause No.=20
05CV-3915
* *=20
*
NO. =
01-07-00484
IN RE THRIVENT =
FINANCIAL FOR=20
LUTHERANS,
Original =
Proceeding on=20
Petition of Writ of Mandamus
O P I N I O=20
N
=
This=20
interlocutory appeal and original proceeding arise from a dispute =
between=20
Colin Brock and his insurer, Thrivent Financial for Lutherans=20
(=E2=80=9CThrivent=E2=80=9D)=20
over nonpayment of disability benefits, which Brock claims =
Thrivent owes=20
him under a Thrivent insurance policy. As required by the policy, =
the=20
trial court compelled the parties to arbitrate. Following an =
evidentiary=20
hearing, the arbitrator denied Brock=E2=80=99s claims. Thrivent =
moved the trial=20
court to confirm the arbitration award. In turn, Brock requested =
the trial=20
court to vacate the arbitration award on the ground that the award =
was=20
obtained =E2=80=9Cby fraud, corruption, or other undue =
means.=E2=80=9D The trial court=20
signed an order denying Thrivent=E2=80=99s motion to confirm the =
award, vacating=20
the arbitration award, and directing a rehearing before a new =
arbitrator.=20
Thrivent appeals the order and also seeks review by way of a =
petition for=20
writ of mandamus. Brock contends that we have no appellate =
jurisdiction=20
over the interlocutory order and requests that the petition for =
mandamus=20
be denied.
=
We=20
dismiss Thrivent=E2=80=99s interlocutory appeal for lack of =
jurisdiction and deny=20
its petition for writ of mandamus.
Interlocutory =
Appeal
=
Appellate=20
courts have jurisdiction to consider immediate appeals of =
interlocutory=20
orders, such as the one in this case, only if a statute =
explicitly provides appellate jurisdiction. Stary v. =
DeBord, 967=20
S.W.2d 352, 352=E2=80=9353 (Tex. 1998); Eichelberger v. =
Hayton, 814 S.W.2d=20
179, 182 (Tex. App.=E2=80=94Houston [1st Dist.] 1991, writ =
denied). Texas courts =
strictly=20
construe statutes authorizing interlocutory appeals because a =
statute=20
authorizing an appeal from an interlocutory order is in derogation =
of the=20
general rule that only final judgments are appealable. Walker Sand, =
Inc. v.=20
Baytown Asphalt Materials, Ltd., 95 S.W.3d 511, 514 (Tex. =
App.=E2=80=94Houston=20
[1st Dist.] 2002, no pet.).
<=
/SPAN>The=20
Texas Arbitration Act (TAA) permits interlocutory appeals of =
certain=20
orders relating to the arbitration process. Specifically, TAA =
section=20
171.098 permits
appeals from orders
(1) denying an application to compel =
arbitration=20
made under Section 171.021;
(2) granting an application to stay =
arbitration=20
made under Section 171.023;
(3) confirming or denying confirmation =
of an=20
award;
(4) modifying or correcting an award;=20
or
<=
/SPAN>(5)=20
vacating an award without directing a rehearing.
Tex. Civ.=20
Prac. & Rem. Code Ann. =C2=A7 171.098(a) (Vernon =
2005).
<=
/SPAN>Brock=20
contends that Thrivent=E2=80=99s appeal should be dismissed =
because the trial=20
court=E2=80=99s order vacates the arbitration award and directs =
rehearing. Brock=20
points out that such an order is not appealable under section =
171.098.=20
Brock notes that subsection 171.098(a)(5) permits an appeal of an =
ordering=20
vacating an award when no rehearing is directed, but no provision =
permits=20
an appeal when a rehearing is directed.
<=
/SPAN>Thrivent=20
responds that the order is appealable because it also denies =
confirmation=20
of the arbitration award. Thrivent cites subsection 171.098(a)(3), =
which=20
permits an appeal from an order denying confirmation of an award. =
Thus, we=20
must determine whether an order denying confirmation of an =
arbitration=20
award, vacating the award, and directing rehearing is an =
appealable order.=20
<=
/SPAN>In=20
Stolhandske v. Stern, we held that an order vacating an =
arbitration=20
award and ordering rehearing was not an appealable interlocutory =
order. 14=20
S.W.3d 810, 815 (Tex. App.=E2=80=94Houston [1st Dist.] 2000, no =
pet.). We based=20
this holding, in part, on the language of subsection =
171.098(a)(5), which=20
limits the review of orders vacating arbitration awards to those =
in which=20
the trial court did not order a rehearing. See id. at 813. =
We=20
contrasted the Federal Arbitration Act, which permits the appeal =
of all=20
orders vacating arbitration awards, without =
specifically=20
limiting the right of appeal to those orders that do not direct a=20
rehearing. Id. at 814 (citing 9 U.S.C. =
=C2=A7 16(a)(1)(E)).=20
=
We=20
also concluded that an order vacating an arbitration award is not=20
appealable under section 171.098(a)(3) as an implicit order =
denying=20
confirmation of an award. Id. at 813=E2=80=9314. We =
reasoned, =E2=80=9CThe vacating=20
of an arbitration award does not [automatically] deny a motion to =
confirm,=20
but renders the consideration of an application to confirm =
moot.=E2=80=9D Id.=20
at 815 (citing North Carolina v. Davidson & Jones =
Constr.=20
Co., 323 S.E.2d 466, 469 (N.C. Ct. App. 1984)). =
=
Lastly,=20
in Stolhandske, we noted that the =
TAA is=20
based on the Uniform Arbitration Act and looked to case law of =
other=20
states, which have also adopted the uniform act. See id. at =
814=20
(citing Tex. Civ. Prac. =
& Rem.=20
Code Ann. =C2=A7 171.003 =
(providing, =E2=80=9CThis=20
chapter shall be construed to effect its purpose and make uniform =
the=20
construction of other states=E2=80=99 law applicable to an =
arbitration.=E2=80=9D)). Citing=20
cases from Maine, Minnesota, and Florida, we concluded, =
=E2=80=9C[A]n order=20
vacating an award and directing a rehearing is the functional =
equivalent=20
of an order granting a new trial. Accordingly, such an order is =
not=20
subject to direct appellate review.=E2=80=9D Id. (citing =
Maine Dep=E2=80=99t of=20
Transp. v. Maine State Employees Ass=E2=80=99n, 581 A.2d 813, =
814 (Me.=20
1990); Minnesota Teamsters Pub. & Law Enforcement =
Employees=20
Union, Local No. 320 v. County of Carver, 571 N.W.2d 598, 599 =
(Minn.=20
Ct. App. 1997); Carner v. Freedman, 175 So.2d 70, 71 (Fla. =
3rd=20
Dist. Ct. App. 1965)).
<=
/SPAN>In=20
Stolhandske, we also discussed National Avenue Building =
Co. v.=20
Stewart, 910 S.W.2d 334 (Mo. Ct. App. 1995), in which the =
Missouri=20
Court of Appeals determined that it did not have jurisdiction to =
review an=20
order that (1) specifically denied a motion to confirm an award; =
(2)=20
vacated the award; and (3) directed a rehearing. 14 S.W.3d at =
814=E2=80=9315. We=20
noted that the court in Stewart decided that it =
had=20
jurisdiction because the order appealed from specifically denied a =
motion=20
to confirm and because Missouri law permits appeals from orders =
granting=20
new trials. Id. at 815 (citing Stewart, 910 S.W.2d at =
338=E2=80=9339).=20
=
In=20
dismissing the appeal in Stolhanske, we found =
Stewart=20
to be inapposite. We cited the fact that the order at issue in =
Stewart specifically denied a motion to confirm an =
arbitration=20
award. Id. In contrast, the order in Stolhanske did=20
not deny a motion to confirm; it only vacated the award and =
directed a=20
rehearing. Id. We also noted that Texas, unlike Missouri, =
does not=20
allow appeals from orders granting new trials. =
Id.
<=
/SPAN>In=20
contrast to the order in Stolhanske, the=20
order signed by the trial court in the instant case denied =
Thrivent=E2=80=99s=20
motion to confirm the arbitration award in addition to vacating =
the award=20
and directing a rehearing. We specifically stated in Stolhanske that=20
we were not determining whether we would have jurisdiction to =
decide an=20
appeal of such an order. Id. at 815 n.1. Thus, while it is=20
instructive, our holding in Stolhandske is=20
not controlling.
<=
/SPAN>Since=20
we issued our opinion in Stolhanske, we=20
have not had an opportunity to determine whether we have =
jurisdiction to=20
hear an appeal of an order that denies a motion to confirm an =
arbitration=20
award, vacates the award, and directs a rehearing. As noted by the =
parties, a split in authority exists on this issue in Texas and=20
nationally.
=
In=20
Prudential Securities, Inc. v. Vondergoltz, the Fourteenth =
Court of=20
Appeals held that section 171.098(a) did not authorize =
the=20
appeal of an order denying confirmation of an arbitration award, =
vacating=20
the award, and directing a rehearing. 14 S.W.3d 329, 331 (Tex.=20
App.=E2=80=94Houston [14th Dist.] 2000, no pet.). The =
Vondergoltz=20
court recognized that, in Stewart, the Missouri Court of =
Appeals=20
held a similar order to be appealable, but disagreed with the =
Stewart=20
court=E2=80=99s analysis. Id.
<=
/SPAN>The=20
Vondergoltz court noted that the Stewart =
court had=20
reasoned that the Missouri legislature =E2=80=9Ccould easily have =
added a proviso=20
to subdivision (3) stating =E2=80=98without directing a =
rehearing,=E2=80=99=E2=80=9D as it had=20
added to subdivision (5), if it had intended an order denying the=20
confirmation of an award not be appealable when rehearing is=20
directed.=20
Id. (citing Stewart, 910 S.W.2d at =
341).
=
Rejecting=20
this reasoning, the Fourteenth Court of Appeals in=20
Vondergoltz determined that =
=E2=80=9Can order=20
denying confirmation of an arbitration award is the functional =
equivalent=20
of an order vacating an award.=E2=80=9D Id. On this basis, the =
court=20
concluded,
[W]here appeals =
are=20
expressly provided in a statute for orders (a) denying =
confirmation of an=20
award and (b) vacating an award without directing a rehearing, it =
most=20
logically follows that an appeal is not allowed for orders denying =
confirmation or vacating an award where rehearing is directed as =
to=20
either. To hold otherwise would render the language =
=E2=80=9Cwithout directing a=20
rehearing=E2=80=9D without effect and would elevate form over =
substance by=20
allowing an appeal where rehearing is directed in denying a =
request for=20
confirmation but not in granting a request to vacate an=20
award.
Id. =
(footnote =
omitted).=20
=
Lastly,=20
the Vondergoltz court reasoned =
that =E2=80=9Cto the=20
extent an order directing rehearing of an arbitration is analogous =
to an=20
order granting a motion for new trial, the rule in Texas that the =
latter=20
is not final or appealable dictates a result =
contrary=20
to that reached in Stewart by reference to the opposite =
rule.=E2=80=9D=20
Id. (footnote omitted).
=
In addition to the =
Fourteenth Court of Appeals, courts in Minnesota and the District =
of=20
Columbia, when interpreting statutes nearly identical to section=20
171.098(a), have also held that an order like the one at issue are =
not=20
appealable.
=
As=20
here, =
in=20
Kowler Associates v. Ross, the appellant argued =
that the order was =
appealable because it not only vacated the award and directed =
rehearing,=20
but also denied the confirmation, which the appellant =
characterized as =E2=80=9Ca=20
separate basis for the appeal,=E2=80=9D under the third subsection =
of Minnesota=20
Statute section 572.26. 544 N.W.2d 800, 801 (Minn. Ct. =
App. 1996)=20
(citing Minn. =
Stat. =C2=A7 572.26 =
subd. 1(3)). The=20
Minnesota Court of Appeals disagreed.
=
The=20
Kowler court cited a provision of the Minnesota arbitration =
act=20
requiring a court to confirm an arbitration award, unless grounds =
are=20
offered to vacate or modify the award. ![3DFootnote](3D"")
Id. =
(citing Minn. Stat. =C2=A7 =
572.18). The court=20
noted that the Minnesota act, in section 572.19, contained a =
separate=20
provision governing the vacatur of arbitration awards. See id.=20
Because the respondent had moved to vacate the award, the =
Kowler=20
court reasoned that =E2=80=9Cthe separate procedure for =
determining whether=20
the award should be vacated applied.=E2=80=9D Id. (citing =
Minn. Stat. =C2=A7 =
572.19). The court=20
continued, =E2=80=9CThe underlying action is a proceeding to =
vacate the award, and=20
the decision to confirm the award depends on determination of the=20
application to vacate.=E2=80=9D Id. On this basis, the =
court concluded,=20
=E2=80=9C[T]he order denying confirmation of the award is not =
appealable unless=20
there is a basis for appeal of the prerequisite order vacating the =
award.=E2=80=9D=20
Id.
&nb=
sp;The=20
Kowler court also relied on rules of statutory construction =
to=20
support its decision that the order was not appealable. The court =
opined,=20
=E2=80=9C[I]f an order that vacates an award and directs rehearing =
were construed=20
to be appealable as an order denying confirmation of the award, =
then=20
section 572.26, subd. 1(5), would be of no effect and an order =
vacating an=20
award always would be appealable, even if a rehearing has been =
directed.=E2=80=9D=20
Id. The court reasoned, =E2=80=9CSuch a construction would =
be inconsistent=20
with the rules of statutory interpretation and the statutory =
prohibition=20
against appeals from orders directing a rehearing.=E2=80=9D=20
Id.
=
In=20
support of its holding, the Kowler court made two =
final=20
points. First, the court pointed out that =E2=80=9C[a]n =
appeal may be taken=20
from an order that denies confirmation, if the order also vacates =
the=20
award without a rehearing.=E2=80=9D Id. at 802. Second, the =
court observed,=20
=E2=80=9C[W]hen a rehearing is directed, appellate review is =
premature because the=20
arbitration process has not been completed.=E2=80=9D =
Id.
=
In=20
Connerton, Ray & Simon v. Simon, the District of =
Columbia Court=20
of Appeals also=20
held that it had no jurisdiction to review an order such as the =
one at=20
issue in this case. 791 A.2d 86, 88 (D.C. 2002). =
The court=20
concluded that the axioms of statutory construction dictated that =
the=20
order was not appealable.
=
As=20
did the Fourteenth Court of Appeals and the Minnesota Court of =
Appeals,=20
the District of Columbia Court of Appeals reasoned that, if it =
were to=20
hold that the order was appealable because it in part denied =
confirmation=20
of an award, then subpart five of the jurisdictional statute, =
specifying=20
that only orders vacating an award =E2=80=9Cwithout directing a =
rehearing=E2=80=9D are=20
appealable, would be =E2=80=9Crendered superfluous.=E2=80=9D =
Id. at 87=E2=80=9388=20
(discussing D.C. Code=20
=C2=A7 16=E2=80=934317(a)(5)). The court opined that =
such a reading=20
violates the basic principle of statutory construction that each =
provision=20
of a statute should be construed to give effect to all of the =
statute=E2=80=99s=20
provisions and not to render any provision superfluous. Id. =
at 88.=20
=
The=20
Simon court=20
also relied on the tenet of statutory construction that, =
=E2=80=9C[w]hen a statute=20
contains potentially inconsistent provisions, the more specific =
provision=20
must govern or control, as a clearer and more definite expression =
of the=20
legislative will.=E2=80=9D Id. =
(internal=20
quotation omitted). The court noted that =E2=80=9CD.C. Code =
16-4317(a)(5)=20
specifically addresses the jurisdictional impact of ordering a new =
hearing, whereas 16-4317(a)(3) is more general.=E2=80=9D=20
Id.
=
Taking=20
the opposite position from the above cases, the Texarkana Court of =
Appeals, in Werline v. East Texas Salt Water Disposal Co., =
held=20
that section 171.098(a)(3) permited an appeal to review an order =
such as=20
the one at issue. 209 S.W.3d 888, 896 (Tex. App.=E2=80=94Texarkana =
2006, pet.=20
filed). In so doing, the Werline court roundly criticized =
the=20
Fourteenth Court of Appeals=E2=80=99s opinion in =
Vondergoltz and agreed=20
with the reasoning of the Missouri Court of Appeals in Stewart. =
Id.=20
at 895=E2=80=9396.=20
=
=
According=20
to the Werline court, Vondergoltz =E2=80=9Cis =
contrary to the plain=20
language of the statute, and in essence, rewrites it.=E2=80=9D =
Id. at 895.=20
The Texarkana=20
Court of Appeals assailed Vondergoltz by stating that the =
opinion=20
renders subsection (a)(3) =E2=80=9Cessentially =
meaningless=E2=80=9D because=20
Vondergoltz=E2=80=99s interpretation =E2=80=9Cadds =
the phrase =E2=80=98without=20
directing a rehearing=E2=80=99 into subsection (a)(3), and thereby =
rewrites the=20
statute.=E2=80=9D Id.
<=
/SPAN>The=20
Werline=20
court pointed out that the TAA requires a court to confirm an =
award unless=20
grounds exist for vacating, modifying, or correcting an =
arbitration award=20
and reasons that =E2=80=9Cunless the trial court fails to follow =
the statutory=20
procedures, a denial of an application to confirm must be =
accompanied by a=20
vacatur or other order.=E2=80=9D Id. (citing Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 171.087 (Vernon 2005)).
<=
/SPAN>With=20
this as background, Werline offers the following critique:=20
Under Vondergoltz, an =
interlocutory appeal=20
would only be authorized under subsection (a)(3) in the rare =
situation=20
when the trial court denies a motion to confirm, but fails to =
vacate the=20
award. Thus, only if the trial court refuses to follow the =
statutory=20
procedures would an interlocutory appeal be available under =
subsection=20
(a)(3). Vondergoltz renders subsection (a)(3) meaningless =
under the=20
guise of preventing subsection (a)(5) from being =
meaningless.
Id.
<=
/SPAN>The=20
Werline court=20
further criticized Vondergoltz by charging that =
it=20
=E2=80=9Cdestroys the benefits of the arbitral process=E2=80=9D =
and creates the=20
possibility that appeal will be denied indefinitely. Id. =
The court=20
cautioned that the arbitration process could =E2=80=9Ccontinue ad =
infinitum=E2=80=9D and=20
warned that =E2=80=9C[t]he trial court could continue to grant =
vacatur multiple=20
times until the result it desires is reached or one of the =
party=E2=80=99s=20
resources are exhausted.=E2=80=9D Id. at 895, =
896.
=
The=20
Werline court opined that subsections (a)(3) and (a)(5) of =
section=20
171.098 can be harmonized under the plain language of the statute =
to give=20
effect to each. Id. at 896. Specifically, the court =
commented that,=20
under the statute=E2=80=99s plain language, =E2=80=9Ca party can =
appeal the denial of an=20
application to confirm, but is prohibited from appealing from the =
granting=20
of a vacatur which directs a rehearing.=E2=80=9D Id. The =
court concluded,=20
=E2=80=9CWe agree with Stewart that the trial =
court=E2=80=99s order granting a=20
motion to vacate and directing a rehearing does not extinguish a =
party=E2=80=99s=20
right to appeal the denial of its motion to confirm.=E2=80=9D =
Id. (footnote=20
omitted).
=
The=20
Texarkana Court=20
of Appeals=E2=80=99s opinion is thoughtful; however, we do not =
agree with its=20
holding and offer the following observations. First, the impact of =
the=20
Werline court=E2=80=99s admonition that the arbitration =
process could=20
=E2=80=9Ccontinue ad infinitum=E2=80=9D under =
Vondergoltz=E2=80=99s holding is weakened by =
the fact=20
that an order vacating an arbitration order and ordering =
rehearing,=20
without denying the confirmation, could also in theory result =
in=20
perpetual arbitration. We assume that the legislature considered =
this when=20
enacting TAA section 171.098(5), which by implication does not =
permit an=20
appeal of such an order, as we held in Stolhandske. See=20
Tex. Civ. Prac. & =
Rem. Code=20
Ann. =C2=A7 171.098(a)(5);=20
Stolhandske, 14 S.W.3d =
at 813.=20
=
Regarding=20
the Werline court=E2=80=99s comment that, =E2=80=9C[u]nder =
Vondergoltz, an=20
interlocutory appeal would only be authorized under subsection =
(a)(3) in=20
the rare situation when the trial court denies a motion to =
confirm, but=20
fails to vacate the award,=E2=80=9D we note that perhaps the =
legislature foresaw=20
such a =E2=80=9Crare situation=E2=80=9D and enacted subsection =
(a)(3) to cover it. 209=20
S.W.3d at 895. Moreover, as pointed out by the Minnesota Court of =
Appeals=20
in Kowler, =E2=80=9C[a]n appeal may be taken from an order =
that denies=20
confirmation, if the order also vacates the award without a =
rehearing.=E2=80=9D=20
544 N.W.2d at 802 (citing subsections (3) and (5) of the =
comparable=20
Minnesota statute).
=
Taking=20
the relevant legal authorities into due consideration, we next =
determine=20
whether we have jurisdiction to determine Thrivent=E2=80=99s =
appeal. We begin by=20
noting that the substance and function of an interlocutory order, =
when=20
viewed in the context of the record, controls our jurisdiction. =
See=20
Walker Sand, 95 S.W.3d at 515. Here, the governing statutory =
procedure=20
and the record shows that the proceeding was predominantly one to =
vacate=20
the arbitration award. That is, vacatur of the award was the =
paramount=20
consideration of the trial court and controls jurisdiction in this =
case.
=
As=20
discussed, TAA section 171.087 provides, =E2=80=9CUnless grounds =
are offered for=20
vacating, modifying, or correcting an award under Section 171.088 =
or=20
171.091, the court, on application of a party, shall confirm the =
award.=E2=80=9D=20
Tex. Civ. Prac. =
& Rem.=20
Code Ann. =C2=A7 171.087 (Vernon=20
2005). In=20
accordance with this provision, the trial court=E2=80=99s decision =
to confirm or=20
deny the award in this case depended on its decision whether to =
vacate the=20
award. See Kowler, 544 N.W.2d at 801. The record =
reflects=20
that Brock asserted that the award should be vacated and =
confirmation=20
denied because the award was obtained =E2=80=9Cby fraud, =
corruption, or other=20
undue means,=E2=80=9D one of the grounds expressly identified in =
section 171.088=20
to support vacatur. See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 171.088(a)(1) (Vernon 2005); see =
also 9=20
U.S.C.S. =C2=A7 10(a) (Lexis Supp. 2007) (providing, in =
Federal=20
Arbitration Act, that award procured by fraud, corruption, or =
undue means=20
may be vacated). The=20
record reflects that the underlying proceeding focused on whether =
Brock=E2=80=99s=20
allegations regarding =E2=80=9Cfraud, corruption, or undue =
means=E2=80=9D =
were correct. Thus,=20
the trial court=E2=80=99s denial of the confirmation was =
subsidiary to the trial=20
court=E2=80=99s vacatur of the award.
=
Moreover,=20
the trial court=E2=80=99s vacatur of the award rendered moot the =
trial court=E2=80=99s=20
decision to deny confirmation of the award. See =
Stolhandske, 14=20
S.W.3d at 815. In any event, the determinative ruling is the =
vacatur of=20
the award, and the order at issue here is not subject to appeal =
unless the=20
vacatur is appealable. See Kowler, 544 N.W.2d at =
801. As discussed, an =
order=20
vacating an award and ordering rehearing, such as the one in this =
case, is=20
not an appealable order. See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 171.098(a)(5);=20
Stolhandske, 14 S.W.3d =
at=20
813.
=
In=20
addition, an order directing a rehearing, like the one at issue, =
does not=20
have the indicia of finality that the other types of orders listed =
in=20
section 171.098(a) possess. See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 171.098(a). For example, =
orders=20
denying an application to arbitrate or confirming an arbitration =
award are=20
final as to the merits of the issue being decided and are ripe for =
appeal.=20
See id. This can also be said of an order that simply =
denies an=20
award or vacates it.
=
In=20
contrast, an order directing rehearing of the arbitration =
contemplates the=20
continuation of the arbitration process and leaves unresolved =
disputed=20
issues. Bison Building Materials, Ltd. v. Aldridge, =
No.=20
01=E2=80=9305=E2=80=9300330=E2=80=93CV, 2006 WL 2641280, at *5 =
(Tex. App.=E2=80=94Houston [1st Dist.]=20
2006, pet. filed) (holding that order confirming arbitration award =
in=20
part, vacating award it in part, and implicitly directing =
rehearing is not=20
appealable interlocutory order); Brooks v. Pep Boys Auto.=20
Supercenters, 104 S.W.3d 656, 660 (Tex. App.=E2=80=94Houston =
[1st Dist.] 2003,=20
no pet.) (explaining that orders compelling arbitration are =
interlocutory=20
per se because they contemplate continuing resolution of issues =
through=20
arbitral process). Orders, such as the one at issue, do not =
possess=20
the attribute of finality underlying TAA section 171.098, =
including=20
subsection 171.098(a)(3). See Simon, 791 A.2d at =
88.
<=
/SPAN>Strictly=20
construing TAA section 171.098, as we must, we conclude that we =
lack=20
jurisdiction to consider Thrivent=E2=80=99s interlocutory appeal =
of the trial=20
court=E2=80=99s order denying the arbitration award, vacating the =
award, and=20
directing rehearing. Accordingly, we dismiss Thrivent=E2=80=99s =
interlocutory=20
appeal for lack of jurisdiction.
Petition for Writ=20
of Mandamus
<=
/SPAN>By=20
petition for writ of mandamus, Thrivent also challenges the trial =
court=E2=80=99s=20
order denying the arbitration award, vacating the award, and =
directing=20
rehearing. Thrivent requests that we =E2=80=9Corder the trial =
court to reverse its=20
ruling and render judgment confirming the January of 2007 =
arbitration=20
award that Brock take nothing.=E2=80=9D
<=
/SPAN>We=20
deny Thrivent=E2=80=99s petition for writ of mandamus.
Conclusion
<=
/SPAN>We=20
dismiss the appeal in appellate cause number =
01=E2=80=9307=E2=80=9300356=E2=80=93CV for lack of=20
jurisdiction. We deny Thrivent=E2=80=99s petition for writ of =
mandamus in=20
appellate cause number =
01=E2=80=9307=E2=80=9300484=E2=80=93CV.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Laura=20
Carter Higley
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel=20
consists of Justices Taft, Hanks, and=20
Higley. |