In re Roland's Roofing Co., NUMBER 13-19-00469-CV
| Decision Date | 23 October 2019 |
| Docket Number | NUMBER 13-19-00469-CV |
| Parties | IN RE ROLAND'S ROOFING CO., INC. |
| Court | Texas Court of Appeals |
On Petition for Writ of Mandamus.
MEMORANDUM OPINIONBefore Chief Justice Contreras and Justices Hinojosa and Tijerina
1
By petition for writ of mandamus, relator Roland's Roofing Co., Inc. seeks to compel the respondent to rule on its motion to compel arbitration in the underlying subrogation case.2 We conditionally grant the petition for writ of mandamus.
On August 30, 2017, Nationwide Mutual Insurance Company (Nationwide) filed a subrogation claim against relator, LS Roofing, LLC, Luis Santisbon, and i3 Group, LLC.3 According to Nationwide's first amended petition, relator had been retained to replace the metal roof on the IHOP restaurant located at 1900 S. Tenth Street in McAllen, Texas. Nationwide alleged that relator's actions during the construction project caused a fire resulting in significant property damage. Accordingly, Nationwide sought recovery of all sums that it had paid to the insureds pursuant to its policy of insurance on the property. Haidar Properties, LLC (Haidar), the entity that operated the IHOP, filed a petition in intervention, as did Elizabeth Barbara Harms, independent executrix of the estate of Frederick James Harms, who owned the building where Haidar operated the IHOP.
On July 26, 2018,4 relator filed a "Motion to Compel Arbitration and Motion for a Stay of Discovery and Further Proceedings." On August 2, 2018, Nationwide filed a response to relator's motion to compel arbitration, and on September 4, 2018, Haidar also filed a response to relator's motion to compel arbitration. On September 10, 2018, relator filed a combined reply to the responses filed by Nationwide and Haidar. That same day, LS Roofing, LLC and Santisbon filed a response in opposition to relator's motion to compel arbitration. On September 11, 2018, the presiding judge of the trial court at thattime, the Honorable Juan Pallida, held a hearing on relator's motion to compel arbitration. At the hearing, Judge Partida deferred ruling on the motion.
On September 21, 2018, relator filed a "First Supplement" in support of its motion to compel arbitration. On September 25, 2018, Haidar filed a response. On December 3, 2018, relator filed a first supplemental reply to Haidar's response to relator's motion to compel arbitration. On December 7, 2018, Judge Partida signed an order granting relator's motion to compel arbitration providing that (1) all parties are compelled to arbitrate all claims, (2) all proceedings are stayed pending arbitration, and (3) all discovery is stayed pending arbitration.
On December 26, 2018, Haidar filed a motion for reconsideration of the trial court's order compelling arbitration. On February 21, 2019, the newly elected judge of the 275th District Court, the Honorable Marla Cuellar, respondent herein, held a hearing on Haidar's motion for reconsideration. At the hearing, the respondent informed counsel that "all the parties should have an opportunity to present their arguments . . . before there is a ruling by the Court." She stated that she wanted to review the transcript from the September 11, 2018 hearing and wanted to provide the parties with "the opportunity to present evidence to the Court regarding the validity" of the contract containing the arbitration clause. The respondent ultimately held that:
So what the ruling of the Court is going to be as—I'm not saying that I'm not going to reconsider the motion for binding arbitration or your request for arbitration. I'm not going to say that I'm not going to consider that but I'm going to reconsider the order at that time. So, I'm going to set aside the order—Judge Partida's order on binding arbitration. I want to set a DCC. I want to look at the transcript and set a DCC and find out what the issues are. Even if we can come together—we can just sit here in court and what are the issues. How much time do you all need? I don't mind doing that. I don't mind sitting with everyone saying, well, how much time do you need. So that you are able to get what you need to prove your position or not proveyour position to the court. I want to be able to give everyone that opportunity.
The respondent expressly stated that she wanted to examine the contract and make an "informed" decision on arbitration. In response to a query from counsel, she orally affirmed that she was setting aside the December 7, 2018 order compelling arbitration.
On April 9, 2019, relator filed a "Motion to Enforce Court's Order of December 7, 2018." Relator contended that the opposing parties were "delaying enforcement" of Judge Partida's order compelling arbitration and were merely "seeking a second bite of the apple." Relator asserted that the opposing parties were "injecting error" into the proceedings, citing precedent that motions to compel arbitration "should be resolved without delay." Relator provided a chronology of relevant events and requested that the respondent "avoid further delay" and enforce the order compelling arbitration.
On May 13, 2019, Haidar filed a response to relator's motion to enforce, arguing that the motion was "frivolous" and arguing that the respondent had clearly ruled that she was setting aside the order compelling arbitration.
On May 14, 2019, the respondent held an expedited hearing on relator's motion to enforce the order compelling arbitration. At the hearing, the respondent indicated that she would review the transcripts of the prior hearings on this matter and then was "either going to sign this order or I am going to set it." At the hearing, the respondent verbally indicated that she would issue a ruling that day. That same day, the respondent signed an "Order Granting Plaintiff's Motion for Reconsideration and Order Setting Aside Order Granting Defendant Roland's Motion to Compel Arbitration." This order states:
IT IS THEREFORE ORDERED, that the Court after having reconsidered its prior decision, is of the opinion that Intervenor/Plaintiff has shown good cause, insofar as to setting aside this Court's Order of December 7th, 2018,granting Defendant Roland's Motion to Compel Arbitration, and therefore, orders that said order on Defendant's Motion to Compel is hereby set aside, and has no effect here forth on this matter.
Subsequently, Nationwide filed a notice of intention to take the deposition of Tim Ellis, and on June 18, 2019, relator filed a motion to quash that deposition on grounds that it constituted improper pre-arbitration discovery. Relator's motion to quash detailed the chronology of the case and contended that Ellis's deposition was not necessary for the respondent to determine arbitrability.
On September 26, 2019, relator filed this original proceeding. By two issues, relator contends that (1) the respondent abused her discretion by refusing to rule on relator's motion to compel arbitration, and (2) relator lacks an adequate remedy by appeal. The Court requested that the real parties in interest—Haidar; Harms; Nationwide; LS Roofing, LLC; and Santisbon—or any others whose interest would be directly affected by the relief sought, file a response to the petition for writ of mandamus within a specified period. See TEX. R. APP. P. 52.2, 52.4, 52.8. Real parties in interest LS Roofing, LLC and Santisbon filed a response stating that they have settled their pending claims and "take no position" on relator's petition for writ of mandamus. The remaining real parties in interest have neither filed responses to the petition for writ of mandamus nor requested additional time to respond.
Mandamus is appropriate when the relator demonstrates that the trial court clearly abused its discretion and the relator has no adequate remedy by appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). The relator has the burden ofestablishing both prerequisites to mandamus relief, and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision that is so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The adequacy of an appellate remedy must be determined by balancing the benefits of mandamus review against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). We evaluate the benefits and detriments of mandamus review and consider whether mandamus will preserve important substantive and procedural rights from impairment or loss. In re Prudential Ins. Co. of Am., 148 S.W.3d at 136.
Consideration of a motion that is properly filed and before the trial court is a ministerial act, and mandamus may issue to compel the trial court to act. See Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig. proceeding); In re Henry, 525 S.W.3d 381, 381 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding) (per curiam); In re Greater McAllen Star Props., Inc., 444 S.W.3d 743, 748 (Tex. App.—Corpus Christi-Edinburg 2014, orig. proceeding); In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding). There is no adequate remedy at law for a trial court's failure to rule because "[f]undamental requirements of due process mandate an opportunity to be heard." See In re Christensen, 39 S.W.3d 250, 251 (Tex. App.—Amarillo 2000, orig. proceeding) (citing Creel v. Dist. Atty. for Medina Cty., 818 S.W.2d 45, 46 (Tex. 1991)); see also In re First Mercury Ins. Co., No. 13-13-00469-CV, 2013 WL6056665, at *3 (Tex. App.—Corpus ...
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