law-ILA-arbitration | interlocutory appeals | finality of order or judgment for purposes of regular appeal |
arbitration mandamus | TAA vs. FAA | FAA applicability |
WHEN CAN AN ARBITRATION-RELATED ORDER BE APPEALED?
Texas Civil Practice and Remedies Code section 51.016 provides that, in a matter subject to the
Federal Arbitration Act (“FAA”), a party may appeal from a “judgment or interlocutory order . . . under
the same circumstances that an appeal from a federal district court’s order or decision would be
permitted by 9 U.S.C. Section 16.” Tex. Civ. Prac. & Rem. Code § 51.016.
Section 16 of the FAA, entitled “Appeals,” provides:
(a) An appeal may be taken from - -
(1) an order - -
(A) refusing a stay of any action under section 3 of this title,
(B) denying a petition under section 4 of this title to order arbitration to proceed,
(C) denying an application under section 206 of this title to compel arbitration,
(D) confirming or denying confirmation of an award or partial award, or
(E) modifying, correcting, or vacating an award;
(2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is
subject to this title; or
(3) a final decision with respect to an arbitration that is subject to this title.
9 U.S.C. § 16(a).
Section 16 of the FAA “expressly prohibits pre-arbitration appeals.” Perry Homes v. Cull, 258 S.W.3d
580, 586 (Tex. 2008) (citing 9 U.S.C. § 16(b)(2)); Chambers v. O’Quinn, 242 S.W.3d 30, 31–32 (Tex.
2007) (noting that “the FAA does not provide for interlocutory appeals from an order compelling
arbitration”). And, as this court explained in HEB Grocery Co., a “careful reading” of 9 U.S.C. section
16(a)(1)(B) “reveals that it applies when a party has failed or refused to arbitrate,” 2010 WL 1790878,
at *2, not when a party has been compelled to arbitrate. Likewise, the Texas Arbitration Act allows
interlocutory appeals only from orders that deny arbitration. Chambers, 242 S.W.3d at 31 (citing Tex.
Civ. Prac. & Rem. Code § 171.098(a)(1), (2)); HEB Grocery Co., 2010 WL 1790878, at *2.
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. See Tex. 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).
Under the TAA, a party can appeal an order or judgment that either: (1) denies an application to
compel arbitration made under section 171.021, or (2) grants an application to stay arbitration under
section 171.023. Tex. Civ. Prac. & Rem. Code § 171.098(a)(1), (2). The Act is one-sided, allowing
interlocutory appeals solely from orders that deny arbitration.
Similarly, the Federal Arbitration Act (FAA) makes no provision for an interlocutory appeal from an
order compelling arbitration. 9 U.S.C. § 16. Because the FAA does not provide for interlocutory
appeals from orders compelling arbitration, we concluded in American Homestar and Freis that
mandamus was the appropriate remedy. See Am. Homestar, 50 S.W.3d at 483; see also Freis v.
Canales, 877 S.W.2d 283, 284 (Tex. 1994).
INTERLOCUTORY APPEALS IN ARBITRATION DISPUTES - MANDAMUS REVIEW
Aeternia Enterprises, U.S.A., v. Magnitogorsk Steel and Wire Works (Tex.App.- Houston [1st Dist.] Jun. 18,
2009)(Op. by Higley)(order compelling arbitration is not an appealable judgment, DWOJ)(arbitration disputes)
DISMISS APPEAL: Opinion by Justice Higley
Before Justices Jennings, Alcala and Higley
01-05-00964-CV Aeternia Enterprises, U.S.A., Ltd. v. Magnitogorsk Steel and Wire Works
Appeal from 133rd District Court of Harris County
Trial Court Judge: Hon. Lamar McCorkle
Bradt v. MBNA America, N.A. (Tex. App. – Houston [14th Dist.] Mar. 12, 2009)(per curiam dimissal)
(trial court order compelling arbitration not immediately appealable)
DISMISSED: Per Curiam
Before Justices Brock Yates, Guzman and Sullivan
14-08-01172-CV L.T. Bradt and Joseph Rothstein v. MBNA America, N.A.
Appeal from 240th District Court of Fort Bend County
Trial Court Judge: Thomas Ralph Culver
Moore v. Verizon Wireless (Tex.App.- Houston [14th Dist.] Feb. 29, 2009)(per curiam) (ILA)
DISMISSED: Per Curiam
Before Justices Frost, Brown and Boyce
14-08-01164-CV Walter Moore v. Verizon Wireless and Derrick Keys
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Linda Storey
The Texas Arbitration Act allows interlocutory appeals solely from orders that deny arbitration. See Tex. Civ.
Prac. & Rem. Code §171.098(a)(1), (2);
Chambers v. O'Quinn, 242 S.W.3d 30, 31 (Tex. 2007) ("In this case, we consider whether the court of appeals
had jurisdiction to review an order compelling arbitration under the Texas Arbitration Act (TAA) as part of the
appeal of a final judgment in the case. See generally Tex. Civ. Prac. & Rem. Code § 171.001-.098. The court of
appeals concluded that mandamus was the appropriate remedy and dismissed the appeal in a memorandum
opinion reasoning that, because mandamus relief had previously been denied by another court of appeals and
this Court, it lacked appellate jurisdiction to review the issue. ___ S.W.3d ___. Because we disagree that the
previous mandamus proceedings deprived the court of appeals of appellate jurisdiction in this matter, we
reverse the court of appeals’ judgment and remand the case for its review on the merits.")
Mason v. Mason (Tex.App. Houston [14th Dist.] May 15, 2008)(per curiam) (family court arbitration,
no interlocutory appeal of motion to confirm arbitration award in family law case)
DISMISSED: Per Curiam
14-07-00991-CV Jason S. Mason v. Patricia A. Mason
Appeal from 308th District Court of Harris County
Trial Court Judge: Judge Georgia Dempster
Aspen Technology, Inc. v. Shasha (Tex.App.- Houston [14th Dist.] Mar. 27, 2008)(Frost)
(interlocutory appeals dismissed, arbitration mandamus granted)
DISMISSED: Opinion by Justice Frost
14-07-00303-CV Aspen Technology, Inc. v. Abe Shasha
Appeal from 165th District Court of Harris County
Trial Court Judge: Hon. Elizabeth Ray
Can order denying confirmation of award be challenged in interlocutory appeal?
In Re Thrivent Financial for Lutherans (Tex.App.- Houston [1st Dist.] Nov. 1, 2007)(Higley)
(motion to confirm arbitration award denied, order for rehearing by different arbiter, no interlocutory appeal
jurisdiction)(suit to confirm arbitration award, due process, notice, securities)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Higley
01-07-00484-CV In re Thrivent Financial For Lutherans
Appeal from County Court at Law of Austin County (Hon. June Jackson)
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