Bison Building Materials, Ltd. v. Aldridge , 263 S.W.3d 69 ( 2006 )

OPINION

JANE BLAND, Justice.

Bison Building Materials, Ltd. and Lloyd K. Aldridge appeal an interlocutory trial court order confirming in part and vacating in part an arbitration decision that dismissed Aldridge’s claims against Bison. We conclude that we lack statutory authority to consider this interlocutory appeal and therefore dismiss it for want of jurisdiction.

Background

Aldridge, a truck driver for Bison, sustained an injury in the course and scope of his employment. Aldridge had signed a Mutual Agreement to Arbitrate Claims (“Arbitration Agreement”) when his employment began, by which he had agreed to resolve any claims for “work-related illnesses or injuries” via arbitration. After he was injured, Aldridge signed a Post Injury Waiver and Release (“post-injury waiver”). The post-injury waiver states in pertinent part: “I am aware that ... I could file a legal action against the Company because of my injury.... In electing to accept benefits under the PLAN, I understand and agree to give up the right to file a legal action against the Company ... for any and all damages sustained by me because of my injury.” The “PLAN” referenced in the post-injury waiver is Bison’s Workplace Injury Plan (the “Plan”), which provides eligible employees who are injured on the job with lost-time income benefits, medical care benefits, and accidental death and dismemberment benefits.

Pursuant to the Plan, Bison paid Al-dridge approximately $80,000 in medical and wage replacement benefits. Aldridge subsequently filed a demand for arbitration, asserting a damages claim for lost wages, medical expenses, pain and suffering, mental anguish, and loss of earning capacity. After the parties instituted arbitration proceedings, Bison moved to dismiss Aldridge’s claim, raising waiver as a defense, and alternatively pleading an offset for $80,259.

The arbitrator initially denied Bison’s motion, finding that a fact issue existed, “albeit very slight[,] as to whether or not [Aldridge] had even signed the Post-Injury Waiver.” He ordered Aldridge to provide additional evidence to support his claim. Aldridge responded with an affidavit averring that he did not remember signing the post-injury waiver or, in the alternative, did not understand the consequences of signing it. Observing that “[i]t is well established in Texas that an individual who signs a contract is presumed to have read and understood the contract and comprehended the legal effect of what he has signed in the absence of iraud or deceit[,]” the arbitrator concluded that there was “overwhelming circumstantial evidence indicating Aldridge actually signed the Post-Injury Waiver.” Accordingly, the arbitrator determined that Al-dridge had waived his right to arbitrate his damages claim against Bison, stating as follows:

[T]he present state of Texas law is such that post-injury waivers as presented in the instant case provide certain and immediate benefits to injured employees. Aldridge was free to decline Bison’s benefit plan while still retaining his right to employment as well as any rights to seek damages but declined by signing the Post-Injury Waiver and accepting benefits as provided by the Plan.

For the foregoing reasons, ... Al-dridge’s attempt to arbitrate a claim for common law damages against Bison ... is hereby dismissed with prejudice.

In the usual course of events, the arbitrator’s determination as to the merits of this dispute, absent certain statutory and perhaps common law exceptions, would be final and non-reviewable. However, the Arbitration Agreement here provides, somewhat unusually, for trial court review of the arbitrator’s decision:

Either party may bring an action in any court of competent jurisdiction ... to enforce an arbitration award. A party opposing enforcement of an award may bring a separate action in any court of competent jurisdiction to set aside the award, where the standard of review will be the same as that applied by an appellate court reviewing a decision of a trial court sitting without a jury.

In accordance with the agreement, Al-dridge moved in the trial court to set aside the arbitration award; Bison moved to confirm it. After conducting a hearing, the trial court, applying the standard of review set forth in the Arbitration Agreement, confirmed the arbitration award in part and vacated it in part, concluding that “fact questions” remained on three issues. In relevant part, the trial court’s order (“Order”) provides as follows:

[T]he Court determines that the motions should be GRANTED in part and DENIED in part as follows.

The Court finds that, as a matter of first impression, that both the Texas Supreme Court decision ... Reyes ... and the fair notice requirements described therein are properly applied to a post-injury waiver. The Court further finds that the post-injury waiver is ambiguous as to whether the right to arbitration is forfeited. Thus, the Final Award of dismissal is VACATED in PART, solely as to the arbitrator’s finding that the post-injury waiver precludes arbitration because there are fact questions on:

(1) Is the post-injury waiver enforceable. That is, (a) does the waiver satisfy the fair notice requirements and, if not, (b) did both parties have actual knowledge of the terms of the waiver agreement. If the answer to these two questions is “no,” the waiver is unenforceable. Even if the waiver is enforceable, there is a fact question on:

(2) Do the ambiguous terms of the waiver preclude this action seeking arbitration.

The arbitration award is CONFIRMED as to the finding that Al-dridge signed the post-injury waiver.

Both parties appeal from the Order. Bison contends the trial court erred in holding that (1) the Texas Supreme Court’s decision in Storage & Processors, Inc. v. Reyes¹ applies to post-injury waivers, and that (2) the post-injury waiver Aldridge signed is ambiguous. In his cross-appeal, Aldridge contends there are fact issues regarding whether he signed, or understood that he was signing, the post-injury waiver. After hearing oral argument, we ordered the parties to provide supplemental briefing on the issue of appellate jurisdiction.

Analysis

As a threshold matter, we determine whether we have jurisdiction over the appeal. Kilroy v. Kilroy, 137 S.W.3d 780, 783 (Tex.App.-Houston [1st Dist.] 2004, no pet.). We may not ignore a lack of jurisdiction, even if the parties do not raise the issue. McCauley v. Consol. Underwriters, 157 Tex. 475, 478, 304 S.W.2d 265, 266 (1957); Davis v. Covert, 983 S.W.2d 301, 302 (Tex.App.-Houston [1st Dist.] 1998, pet. dism’d w.o.j.). If we conclude that we do not have jurisdiction, we must dismiss the appeal. Kilroy, 137 S.W.3d at 783.

Unless specifically authorized by statute, we have jurisdiction to review only final judgments. Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 1997); Stolhandske v. Stern, 14 S.W.3d 810, 813 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). A judgment is final for purposes of appeal “if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex.2000); see also Childers v. Advanced Found. Repair, L.P., 193 S.W.3d 897, 898 (Tex.2006) (per curiam) (applying Lehmann and holding that trial court’s order dismissing parties’ claims and compelling arbitration was final because it contained unequivocal finality language). The Order here does not contain finality language or otherwise state that it is a final judgment. Nor does it dispose of all claims and parties. In fact, it does the exact opposite — it states that “fact questions” remain regarding whether the post-injury waiver is enforceable and whether the ambiguous terms of the waiver preclude the arbitration. Thus, the Order does not dispose of all the parties’ claims; rather, it “contemplate^] continuing resolution through the arbitration process” and is “interlocutory per se under the Lehmann reasoning.” Brooks v. Pep Boys Auto. Supercenters, 104 S.W.3d 656, 660 (Tex.App.-Houston [1st Dist.] 2003, no pet.). We therefore must determine whether we are otherwise statutorily authorized to consider this interlocutory appeal.

The Arbitration Agreement provides that it is governed by the Federal Arbitration Act (“FAA”). Under the FAA, a party may appeal an order confirming an award or a partial award, or an order vacating an award. 9 U.S.C. § 16(a)(1)(D), (E) (1997). “[H]owever, federal procedure does not apply in Texas courts, even when Texas courts apply the Federal [Arbitration] Act.” Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992) (holding that, although Texas Arbitration Act allows interlocutory appeal from denial of motion to compel arbitration made under section 171.021 of Act, interlocutory appeal is not available under Texas Arbitration Act when trial court denies motion to compel arbitration made under FAA, even though FAA permits party to take interlocutory appeal); see also Belmont Constructors, Inc. v. Lyondell Petrochemical Co., 896 S.W.2d 352, 355 (Tex.App.-Houston [1st Dist.] 1995, no writ) (“Texas procedure allows appeals of interlocutory orders only if permitted by statute.... An order from the trial court denying arbitration under the Federal [Arbitration] Act does not fall within a statutory exception.”). Thus, we examine whether Texas procedure authorizes the parties’ interlocutory appeal.

Under Texas procedure, appellate courts possess jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly confers appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998); Eichelberger v. Hayton, 814 S.W.2d 179, 182 (Tex.App.-Houston [1st Dist.] 1991, writ denied). A statute authorizing an appeal from an interlocutory order is in derogation of the general rule that only final judgments are appealable; thus, we strictly construe such a statute. Walker Sand, Inc. v. Baytown Asphalt Materials, Ltd., 95 S.W.3d 511, 514 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

The general Texas statute permitting appeals from interlocutory orders does not include an order confirming in part and vacating in part an arbitration award as one of those interlocutory trial court orders from which a party may appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(1)-(11) (Vernon Supp.2005) (setting forth eleven types of appealable interlocutory orders). The Texas General Arbitration Act (“TAA”), however, authorizes appeals from certain types of interlocutory orders relating to arbitration proceedings. See id. § 171.098 (Vernon 2005); Stolhandske, 14 S.W.3d at 813. Specifically, the TAA provides as follows:

(a) A party may appeal a judgment or decree entered under this chapter or an order:

(1) denying an application to compel arbitration made under Section 171.021;

(2) granting an application to stay arbitration made under Section 171.023;

(3) confirming or denying confirmation of an award;

(4) modifying or correcting an award; or

(5) vacating an award without directing a rehearing.

Tex. Civ. Prac. & Rem.Code Ann. § 171.098(a)(1)-(5). Applying section 171.098(a)(5), the Fort Worth Court of Appeals has held that “a party challenging an order vacating an arbitration award without directing a rehearing in an arbitration governed by the FAA may do so through an interlocutory appeal.” J.D. Edwards World Solutions Co. v. Estes, Inc., 91 S.W.3d 836, 839 (Tex.App.-Fort Worth 2002, pet. denied) (cautioning, however, that interlocutory appeal is not permissible under section 171.098(a)(5) if trial court directs rehearing or orders new arbitration).

Here, the trial court’s Order confirms an arbitration award in part and vacates it in part. In vacating the award, the Order identifies certain “fact questions” that remain and provides a roadmap for the arbitrator to follow in considering those issues.² Though the Order does not expressly direct a rehearing, by identifying remaining issues, it necessarily contemplates resolution of those issues by way of a rehearing.

The fact that these undecided issues are the precise issues the parties ask us to consider on appeal underscores the interlocutory nature of the Order. Moreover, somewhat unusually, the Arbitration Agreement in this case provides that the trial court may review the arbitrator’s decision using an appellate court standard of review — a standard that is “the same as that applied by an appellate court reviewing a decision of a trial court sitting without a jury.” This sort of clause presents interesting issues of jurisdiction and policy, which the parties do not raise or brief here. See Hughes Training Inc. v. Cook, 254 F.3d 588, 590, 592-93 (5th Cir.2001) (citing Gateway Techs., Inc. v. MCI Telecomms. Corp., 64 F.3d 993, 996-97 (5th Cir.1995)) (holding identical clause enforceable).³ But the Arbitration Agreement does not provide for appellate review of the trial court’s decision — in particular, on any interlocutory basis, and thus we need not enter the debate to resolve this appeal, as we decide it based purely on our own statutory-based appellate jurisdiction — or, in this case, lack thereof.

The parties similarly understand the Order to direct a rehearing. In its notice of appeal, Bison states that it appeals from “the Court’s order of March 8, 2005, denying in part the Final Award of the arbitrator and remanding the case ... for farther proceedings.” (Emphasis added). Likewise, in its initial brief, Bison states that the Order “remanded the case back to arbitration for further proceedings. Specifically, the Court directed the arbitrator to determine whether the post-injury waiver was enforceable under the fair notice doctrine and whether ‘the ambiguous terms of the waiver preclude this action seeking arbitration.’ ” ⁴ Similarly, in his supplemental brief, Aldridge agrees that “the parties will return to arbitration under the Trial Court’s Order, it appears that the Trial Court’s Order is considered interlocutory, and the Appeals Court lacks jurisdiction.”

Applying section 171.098(a)(5), we conclude that the Order “is the functional equivalent of an order granting a new trial [and, as] such[,] ... is not subject to direct appellate review.” Stolhandske, 14 S.W.3d at 813-15 (construing section 171.098(a)(5) and concluding that “this Court has no jurisdiction to consider an appeal from an order that vacates an arbitration award and orders a new arbitration”); accord Prudential Sec., Inc. v. Vondergoltz, 14 S.W.3d 329, 330-31 (Tex.App.-Houston [14th Dist.] 2000, no pet.); ef. Citizens Nat’l Bank of Beaumont v. Callaway, 597 S.W.2d 465, 465-66 (Tex.Civ.App.-Beaumont 1980, writ ref'd) (holding that court lacked jurisdiction under TAA to consider interlocutory appeal from trial court order that compelled arbitration and defined issues for arbitrators to decide).⁵

Strictly construing section 171.098(a), as we must, we hold that the Order at issue here is not an appealable interlocutory order. Walker Sand, 95 S.W.3d at 516. “It is fundamental error for an appellate court to assume jurisdiction over an interlocutory order when not expressly authorized to do so by statute.” Gathe v. Cigna Healthplan of Tex., Inc., 879 S.W.2d 360, 363 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (citing New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex.1990)). We do not imply a lack of jurisdiction from the TAA provision allowing interlocutory appeals of certain arbitration orders. Rather, absent a final judgment, or statutory authorization, we do not have state court appellate jurisdiction in the first instance. We therefore dismiss the appeal for want of jurisdiction.

Conclusion

We conclude that we lack statutory authority to consider the parties’ interlocutory appeal and therefore dismiss the appeal for want of jurisdiction.

Justice KEYES, dissenting.

1 . 134 S.W.3d 190 (Tex.2004).

2 . Specifically, the Order states that "the Final Award of dismissal is VACATED in PART, solely as to the arbitrator’s finding that the post-injury waiver precludes arbitration because there are fact questions

3 . The federal circuit courts of appeal are split on the issue, with the First, Third, and Sixth in accord with the Fifth, and the Eighth, Ninth, and Tenth in disagreement. Compare Puerto Rico Tel. Co. v. U.S. Phone Mfg. Corp., 427 F.3d 21, 31 (1st Cir.2005) ("[T]he parties can by contract displace the FAA standard of review, but that displacement can be achieved only by clear contractual language.”), Jacada (Europe), Ltd. v. Int’l Mktg. Strategies, Inc., 401 F.3d 701, 710-11 (6th Cir.2005) (noting that parties may contractually opt out of FAA’s standard for vacatur), and Roadway Package Sys., Inc. v. Kayser, 257 F.3d 287, 293 (3d Cir.2001) (“[Pjarties may opt out of the FAA’s off-the-rack vacatur standards and fashion their own_”), with Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 994 (9th Cir.2003) (en banc) ("[B]ecause Congress has specified the exclusive standard by which federal courts may review an arbitrator’s decision, ... private parties may not contractually impose their own standard on the courts.”), Bowen v. Amoco Pipeline Co., 254 F.3d 925, 937 (10th Cir.2001) (”[P]arties may not contract for expanded judicial review of arbitration awards.”), and UHC Mgmt. Co. v. Computer Scie. Corp., 148 F.3d 992, 997-98 (8th Cir.1998) (suggesting in dicta that parties may not contract for expanded judicial review of arbitration award). The Texas Supreme Court has yet to decide this issue. See Mariner Fin. Group, Inc. v. Bossley, 79 S.W.3d 30, 43 (Tex.2002) (Owen, J., concurring) (“It is not at all clear whether parties can, by their agreement, expand the standards for judicial review of arbitration awards ...."). Our sister court has followed the Fifth Circuit. See Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 251 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (concluding that, although "parties may agree to expand judicial review of an arbitration award beyond the scope of the FAA,” arbitration provision at issue lacked "clear and express language altering the standard of review”).

4 . We note that in the supplemental brief it submitted after oral argument, Bison proclaims for the first time that “[t]he parties in this case have been laboring under the mistaken assumption that the trial court’s [Ojrder ... directed a rehearing for a resolution of certain fact issues. It does no such thing.”

5 . Nor is section 171.098(a)(3) applicable. See Tex. Civ. Prac. & Rem.Code Ann. § 171.098(a)(3) (Vernon 2005). That provision permits an appeal from an order “confirming or denying confirmation of an award.” Id. The Order at issue here does not confirm "an award”— rather, it confirms only part of an award. As the Order does not confirm the arbitration award in its entirety, the trial court did not issue a corresponding judgment as required by section 171.092(a). See id. § 171.092(a) (“On granting an order that confirms ... an award, the court shall enter a judgment or decree conforming to the order.”); Action Box Co. v. Panel Prints, Inc., 130 S.W.3d 249, 251 n. 2 (Tex.App.-Houston [14th Dist.] 2004, no pet.) ("[S]ection 171.092 requires a trial court to enter a corresponding judgment whenever it grants an order confirming ... an award.”). Accordingly, we decline to exercise jurisdiction under section 171.098(a)(3). See Prudential Sec., Inc. v. Vondergoltz, 14 S.W.3d 329, 330-31 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (where court order vacated arbitration award and directed rehearing, holding that there was no statutory basis for appeal under section 171.098(a)(5), and rejecting appellant’s assertion that interlocutory appeal was nonetheless authorized under section 171.098(a)(3) because order also contained language expressly denying confirmation of award).