in Re Nathan Robinson and Misti Robinson ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
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No. 02-22-00214-CV
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IN RE NATHAN ROBINSON AND MISTI ROBINSON, Relators
Original Proceeding
271st District Court of Jack County, Texas
Trial Court No. 15-02-019
Before Kerr, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Relators Nathan Robinson and Misti Robinson filed this mandamus proceeding
asking this court to compel the trial court to rule on their “Plaintiffs’ Motion to Enter
Order Referring Claims and Issues to Arbitrator David [Seidler]” (the Robinsons’
motion). For the reasons below, we deny their petition.
Background
Rather than providing a detailed summary of this litigation’s long procedural
history, we will pick up where we last left off. See Robinson v. Home Owners Mgmt.
Enters., Inc. (Robinson II), No. 02-20-00215-CV, 2021 WL 924839, at *1 (Tex. App.—
Fort Worth Mar. 11, 2021, pet. denied) (mem. op.); see also Robinson v. Home Owners
Mgmt. Enters., Inc. (Robinson I), 590 S.W.3d 518, 521 (Tex. 2019). In the last appeal, this
court reversed the trial court’s grant of summary judgment for Home Owners
Management Enterprises, Inc. d/b/a Home of Texas and Warranty Underwriters
Insurance Company (collectively, Home) on the claims in the Robinsons’ fourth
amended statement of claims. Home’s summary judgment motion had included res
judicata as a ground, and this court determined that “[t]he arbitrator rather than the
trial court should have decided whether the Robinsons’ individual release-related
claims were barred by res judicata based on the assertion that those claims were or
could have been resolved in the previous arbitration.” Robinson II, 2021 WL 924839, at
*15. We stated that “[l]ogically, the question was a preface to the determination of
whether the release-related claims had merit.” Id. Accordingly, we reversed the trial
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court’s summary judgment, and we concluded our opinion with the following
command: “We . . . remand this case to the trial court, and order that the question of
whether the Robinsons’ individual release-related claims are barred by res judicata be
referred to the arbitrator previously appointed to hear the Robinsons’ individual
claims.” Id.The trial court’s implementation of that command is the direct impetus for this
mandamus proceeding. Home presented the trial court with a proposed order that
mirrored the conclusion of this court’s opinion:
On March 11, 2021, the Second Court of Appeals reversed this
Court’s summary judgment order of June 9, 2020 and ordered “that the
question of whether the Robinsons’ individual release-related claims are
barred by res judicata be referred to the arbitrator previously appointed
to hear the Robinsons’ individual claims [Honorable David S[ei]dler].”
Accordingly, the question of whether the Robinsons’ individual
release-related claims are barred by res judicata is hereby referred to
Arbitrator David S[ei]dler. All other matters in this cause are stayed until
the Arbitrator renders his decision on res judicata. [External brackets in
original.]
Home also filed another summary judgment motion, which included all of its prior
summary judgment grounds except res judicata.
In response, the Robinsons filed the motion at issue in this mandamus. In that
motion, the Robinsons asserted that the trial court should (1) render an order
reaffirming that all of the Robinsons’ individual claims had already been compelled to
arbitration and (2) not sign the order proposed by Home because it “suggest[ed] or
propos[ed] the only issue/claim compelled to arbitration is . . . [the issue of] res
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judicata” and compelled the arbitrator to rule on the res judicata issue before any
others. Home filed a response to the Robinsons’ motion in which it conceded that if
any of the Robinsons’ individual claims were still pending, they must proceed in
arbitration. 1 After a hearing, on April 5, 2022, the trial court signed Home’s proposed
order but signed no order disposing of the Robinsons’ motion.2 The Robinsons then
sent a letter to the trial court requesting a ruling on their motion. Meanwhile, Home
filed a motion requesting that the trial court lift its stay for the limited purpose of
allowing it to withdraw its summary judgment motion.
The Robinsons filed an appeal from the trial court’s April 5 order “regarding
the trial court’s refusal to compel certain specific matters to arbitration.” After this
court notified the parties of our concern that we lacked jurisdiction over the appeal
because there did not appear to be an appealable interlocutory order, the Robinsons
sent multiple letters to the trial court asking the court to rule on their motion. The
trial court signed no further orders, and the Robinsons filed this mandamus
1
Home’s response also stated that its summary judgment motion was
“addressed to the viability of the Robinsons’ class claims, not the Robinsons’
individual claims, no matter how many times the Robinsons mischaracterize Home’s
arguments.” We note that the summary judgment motion asserted that Home was
entitled to judgment on the entirety of the Robinsons’ fourth amended statement of
claims, i.e., on both the individual and class claims.
2
However, by signing Home’s proposed order, the trial court effectively denied
the part of the Robinsons’ motion requesting that it not sign the order.
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proceeding in which they complain about the language of the April 5 order and ask
this court to compel the trial court to rule on their motion.
Discussion
“Mandamus will not issue unless: (1) the trial judge has committed a clear abuse
of discretion; and (2) there is no adequate remedy on appeal.” In re Olshan Found.
Repair Co., 328 S.W.3d 883, 887 (Tex. 2010). A trial court abuses its discretion if it
reaches a decision so arbitrary and unreasonable it amounts to a clear and prejudicial
error of law or it clearly fails to correctly analyze or apply the law. Id.II. The trial court’s order followed the language of our prior opinion.
We begin by addressing what the April 5 order does and does not do. The
Robinsons complain that by signing Home’s proposed order while not granting their
motion, the trial court’s order improperly compels the arbitrator to rule on the res
judicata defense before anything else and improperly limits what matters the arbitrator
may consider. We do not construe the order to do any such thing. The order copies
practically verbatim the command this court included in its prior opinion. See Robinson
II, 2021 WL 924839, at *16. The order stays trial court proceedings and refers to the
arbitrator a specific defense raised by Home to both the individual and class claims,
but it does not attempt to withdraw from arbitration any claims that are already within
the arbitrator’s jurisdiction, and it does not attempt to forbid the arbitrator from
considering other matters at the same time as the res judicata issue if the arbitrator
chooses to do so. In other words, the Robinsons’ asserted need for the trial court to
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immediately sign their order to clarify what matters are before the arbitrator is not
based on the order’s language.
Further, the trial court’s requesting a decision on the res judicata question and
staying all other trial court proceedings is reasonable because the arbitrator’s res
judicata decision affects the trial court’s handling of the class claims, which are not
arbitrable. See Robinson I, 590 S.W.3d at 535. If res judicata applies to bar the
Robinsons’ individual release-related claims, that would affect their ability to serve as
class representatives for the related class claims. Lon Smith & Assocs., Inc. v. Key, 527
S.W.3d 604, 626 (Tex. App.—Fort Worth 2017, pet. denied) (“A class representative
must be part of the class and must possess the same interest and suffer the same
injury as the class members.”). On the other hand, if res judicata does not apply,
Home acknowledges that the class claims must be stayed while the related individual
claims are resolved in arbitration. See Star Sys. Int’l Ltd. v. 3M Co., No. 05-15-00669-
CV, 2016 WL 2970272, at *4 (Tex. App.—Dallas May 19, 2016, no pet.) (mem. op.)
(“When an issue is pending in both arbitration and litigation, arbitration should be
given priority to the extent it is likely to resolve issues material to the lawsuit.”).
II. There is no longer any real dispute between the parties regarding
arbitrability of the individual claims.
Beyond the fact that the trial court did what this court directed it to do, there is
another reason that the Robinsons are not entitled to mandamus relief: granting their
requested relief would compel the trial court to rule on a matter over which there is
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now no real dispute.3 In Home’s trial court response to the Robinsons’ motion, it
conceded that “[i]f [the arbitrator] determines that the Robinsons have individual
claims pending, then . . . those claims must proceed in arbitration.” Similarly, in its
mandamus response in this court, it states unequivocally that “the Robinsons’
individual claims are already in arbitration.”4 See Bexar Metro. Water Dist., 234 S.W.3d at
131 (stating controversy is moot when no controversy actually exists or the judgment
sought cannot have any practical legal effect on a then-existing controversy).
The Robinsons are correct that, generally speaking, motions to compel
arbitration must be ruled on in a timely manner. See In re Emp. Funding of Am., LLC,
No. 13-21-00420-CV, 2022 WL 1013254, at *6 (Tex. App.—Corpus Christi–Edinburg
3
Home disputes that its summary judgment motion should be compelled to
arbitration, but its arguments are that a trial court compels arbitration of claims, not
of particular motions, and that its summary judgment motion also addressed the
Robinsons’ class claims, which do not belong in arbitration.
4
We recognize that generally, before a defendant’s cessation of challenged
conduct moots a controversy, events must make clear that the challenged conduct
could not reasonably be expected to recur. Matthews ex rel. M.M. v. Kountze ISD, 484
S.W.3d 416, 418 (Tex. 2016); Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d
126, 131 (Tex. App.—Austin 2007, no pet.). Here, Home made a clear and
unequivocal concession both in the trial court and in this court that all of the
Robinsons’ individual claims are in arbitration, and it did so deliberately in an attempt
to convince the trial court and this court that there was no need to rule on the
Robinsons’ motion. See Phillips v. Phillips, 296 S.W.3d 656, 668 (Tex. App.—El Paso
2009, pet. denied) (discussing judicial admissions and quasi-admissions and their
binding effect). Such a binding admission bars Home from disputing the arbitrability
of the individual claims. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905
(Tex. 2000) (holding appellee’s clear assertion in her petition that appellant was a
health care provider within meaning of statute was a judicial admission).
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Apr. 5, 2022, orig. proceeding) (mem. op.) (stating that trial judge has duty to rule on
properly-filed motions within a reasonable time and that whether reasonable time has
lapsed depends on circumstances of each case); In re ReadyOne Indus., Inc., 463 S.W.3d
623, 624 (Tex. App.—El Paso 2015, orig. proceeding) (granting mandamus relief for
trial court’s failure to rule for more than seven months on motion to compel
arbitration). Here, however, the parties agree that the individual claims are already in
arbitration.5 Accordingly, the trial court has no need to “reaffirm” the status of those
claims over which there is no dispute.
The Robinsons argue in a reply to Home’s mandamus response that the parties
still dispute what claims fall within arbitration, and they specifically mention a claim
for breach of the arbitration agreement.6 However, Home conceded that all individual
claims are in arbitration. This claim is therefore undisputedly in arbitration.
5
Home argues that the Robinsons’ motion was not a motion to compel
arbitration because the claims at issue are already in arbitration. Cf. Dealer Comput.
Servs., Inc. v. Red Hill Ford, Inc., No. 05-10-00983-CV, 2010 WL 3566124, at *1 (Tex.
App.—Dallas Sept. 15, 2010, no pet.) (mem. op.) (distinguishing, for purposes of
interlocutory appeal, between an initial motion to compel arbitration under the FAA
and a motion to resume arbitration proceedings). Regardless of how we construe the
motion, the parties no longer have any dispute about whether the individual claims are
in arbitration.
We assume that the Robinsons refer to the claim in their fourth amended
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statement of claims alleging that Home was “guilty of a breach of contract by
submitting its summary judgment [motion] to the trial court in clear contradiction of
the policy/warranty.” If they have pled a different claim in some other superseding
pleading, they have not told us where to find it, and we have not discovered it.
8
The Robinsons further complain that they are entitled to a ruling on their
request for the trial court to refer Home’s most recent summary judgment motion7 to
arbitration—a motion that Home apparently no longer wants to pursue. We are not
persuaded that this asserted basis alone is enough to justify mandamus relief. The
Robinsons cite no authority for the proposition that a trial court should refer
particular motions to arbitration—or in this case, part of a motion 8—as opposed to
the claims to which the motions relate. See Tex. R. App. P. 52.3(h). In any case, as
stated, the Robinsons’ individual claims are undisputedly now in arbitration, to the
extent they survive. By conceding that the individual claims are in arbitration, Home
has also conceded that the summary judgment motion’s grounds directed to the
merits of the Robinsons’ individual claims must be decided in arbitration, if at all.
Thus, as to the parts of the motion addressing the individual claims, there is nothing
that needs referring to the arbitrator. Further, based on this court’s dictate on remand
and the trial court’s April 5 order, no adjudication of the Robinsons’ class claims will
happen in the trial court, by summary judgment or otherwise, until the arbitrator
decides the res judicata issue.
The Robinsons’ motion asked for relief only as to this summary judgment
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motion and not to any other previously-filed summary judgment motions.
8
As Home points out, the summary judgment motion also sought judgment on
the Robinsons’ non-arbitrable class claims. Whatever decision the arbitrator ultimately
makes regarding res judicata and the individual claims, he may not determine the
effect that his decision has on the class claims. In the meantime, no adjudication of
the class claims will proceed while the matter is stayed in the trial court.
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The Robinsons are also concerned that without mandamus relief, they cannot
pursue their interlocutory appeal. That may or may not be the case. Regardless, they
are not entitled to mandamus relief unless the trial court’s failure to rule on their
motion constitutes an abuse of discretion. For the reasons explained above, it does
not.
Conclusion
In conclusion, (1) there is no dispute between the parties that, to the extent the
individual claims survive, they are in arbitration; (2) the trial court’s order dictates
what information it seeks from the arbitrator but does not dictate how the arbitrator
must conduct his own proceedings or what other matters, if any, the arbitrator may
consider while determining the res judicata issue; and (3) the arbitrator’s
determination of the res judicata issue may resolve the individual claims and will in
any case affect the remaining course of litigation in the trial court. Given the specific
circumstances of this case, the Robinsons have not established their entitlement to
mandamus relief. Accordingly, for these reasons, we deny the Robinsons’ petition for
writ of mandamus.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: August 4, 2022
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