CMH Homes, et al. v. Adam Perez, No. 10-0688 (Wainwright, J.) (DB)

To challenge a trial court’s arbitration order, can you file an interlocutory appeal or must you file for a writ of mandamus?

It used to be that you had to file both if there was any uncertainty about whether your agreement fell under the Texas statute or the federal statute. Those days are behind us, thanks to a 2009 amendment to Civil Practice and Remedies Code §51.006, which gives Texas appellate courts equal jurisdiction over both kinds of cases.

But CMH Homes shows that some confusion still remained.  Although the statute clearly points Texas courts to federal law for guidance, federal law is not always clear on the answers. When federal law is unclear, what should a litigant do? Do Texas courts have appellate jurisdiction or not?

Now, the Texas Supreme Court has had enough. The issue in CMH Homes is whether a dispute between the parties about which person to appoint as an arbitrator can support an interlocutory appeal. The Texas Supreme Court saw that federal law was unclear on the subject — and thus concluded that the Texas appellate courts had no true appellate jurisdiction over the question.

But the Court held that, even though CMH Homes had not filed a separate petition for writ of mandamus (with the accompanying mandamus record and other procedural quirks), the court of appeals nonetheless should have acted as though such a petition had been filed:

We will not unnecessarily waste the parties’ time and further judicial resources by requiring CMH Homes to file a separate document with the title “petition for writ of mandamus” listed on the cover where the party has expressly requested mandamus treatment of its appeal in an uncertain legal environment.

The Court reversed and remanded for the court of appeals to consider this appeal as though it had been filed as a mandamus proceeding.

A fair question might be, “If just a few words in your appellate brief is all it takes to convey mandamus jurisdiction, why did this problem take so much paper over so many years and ultimately a legislative fix? Wouldn’t a procedural holding like this have solved the problem?” So far as I can tell, the answer is yes.

Take away: If you’re taking an interlocutory appeal of an arbitration dispute, and there is any doubt at all about whether federal law would permit the same appeal, you can request mandamus relief in the alternative. Adding those few words might save your bacon.

Earlier post: “Three arguments tomorrow, including a former Justice’s first return to the Court as an advocate”