Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
Nos. 04-14-00452-CV, 04-14-00568-CV & 04-14-00597-CV
Mark HART and Angelica Hart, Julian Calderas, Jr. and Erica Calderas, and
Thomas H. Veitch and Anne Veitch,
Appellants
v.
FLAGSHIP HOMES, LTD. d/b/a Prestige Homes,
Appellee
From the 288th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2014-CI-04333, 2014-CI-04330 & 2014-CI-04337
Honorable Martha B. Tanner, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: December 10, 2014
REVERSED AND REMANDED
Mark Hart and Angelica Hart, Julian Calderas, Jr. and Erica Calderas, and Thomas H.
Veitch and Anne Veitch appeal the trial court’s orders entered in each of the underlying causes
denying their petitions to confirm arbitration awards. Although the trial court’s orders deny the
petitions to confirm the arbitration awards, the orders do not vacate the arbitration awards.
Because the trial court was required to enter orders that either confirmed the awards or vacated,
modified, or corrected the awards, the trial court erred in entering orders that only denied the
04-14-00452-CV, 04-14-00568-CV & 04-14-00597-CV
petitions to confirm. Accordingly, we reverse the trial court’s orders and remand the causes to the
trial court for further proceedings.
BACKGROUND
The appellants purchased homes from the appellee, Flagship Homes, Ltd. d/b/a Prestige
Homes, and subsequently made claims alleging that Prestige Homes fraudulently induced them
into purchasing the homes based on various misrepresentations. Pursuant to the Sales Agreements
signed by the appellants, the claims were submitted to arbitration, and the arbitrator entered awards
in favor of the appellants. The appellants then filed petitions to confirm the arbitration awards,
and Prestige Homes filed objections to the confirmation. After a hearing, the trial court entered
orders denying the petitions to confirm.
DISCUSSION
All parties agree that the Federal Arbitration Act is applicable to the underlying causes
because the transaction involved interstate commerce. 1 Nafta Traders, Inc. v. Quinn, 339 S.W.3d
84, 97 n. 64 (Tex. 2011) (noting FAA applies to transactions involving interstate commerce).
Section 9 of the FAA permits a party to an arbitration to apply to a trial court for an order
confirming the arbitration award. 9 U.S.C. § 9. Upon such an application, the trial court “must
grant” an order confirming the award “unless the award is vacated, modified, or corrected.” Id.
As the United States Supreme Court has stated, “There is nothing malleable about ‘must grant’
which unequivocally tells courts to grant confirmation in all cases, except when one of the
‘prescribed’ exceptions applies.” Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 587
1
Prestige Homes actually contends both the FAA and the Texas Arbitration Act are applicable. See Nafta Traders,
Inc. v. Quinn, 339 S.W.3d 84, 97 & n. 64 (Tex. 2011) (noting TAA and FAA may both be applicable). Because
Prestige Homes agrees the FAA is applicable, we do not need to resolve whether the TAA also is applicable for
purposes of this opinion. See TEX. R. APP. P. 47.1 (providing that appellate court opinions should be “as brief as
practicable” while “addressing every issue raised and necessary to final disposition of the appeal”).
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(2008); see also Hamstein Cumberland Music Group v. Williams, 532 Fed. Appx. 538, 543 (5th
Cir. 2013) (quoting Hall Street and noting trial court is required to grant an order of confirmation
“absent recourse to one of the seven, narrow grounds for modification or vacatur”).
In their brief, the appellants acknowledge that the trial court failed to take either of the two
available courses of action. Prestige Homes responds that the appellants waived any complaint
that the trial court erred in not expressly vacating the award and argues, “By declining to confirm
the award, the trial court impliedly vacated it.” Both parties then brief the legal arguments
applicable on appeal when a trial court either confirms or vacates an arbitration award. This court,
however, has jurisdiction to consider only the orders the trial court actually entered.
In Murchison Capital Partners, L.P. v. Nuance Communications, Inc., 760 F.3d 418 (5th
Cir. 2014), the Fifth Circuit addressed whether an order that neither confirmed nor vacated an
arbitration award was an appealable order. First, the Fifth Circuit noted:
It is well established that an order confirming an arbitration award is a final
appealable order. It is also well established that an order vacating an award and
remanding the case back to arbitration for a rehearing is a final appealable order.
760 F.3d at 420-21 (internal citations omitted). The Fifth Circuit then noted, however, that “the
district court neither vacated nor confirmed the arbitration award but instead remanded the award
back to the arbitration panel for further consideration of [the claimant’s] out-of-pocket damages.”
Id. at 421. The Fifth Circuit held that it lacked jurisdiction to consider an appeal of the order
because “the district court neither confirmed nor vacated the arbitration award.” Id. at 423.
Similarly, in In re Deepwater Horizon, 579 Fed. Appx. 256, 258 (5th Cir., 2014), the Fifth
Circuit considered an appeal of a district court’s order that denied the appellants’ motions to
confirm arbitration award. In response to the appellees’ motions to dismiss for lack of jurisdiction,
the appellants asserted that orders “denying confirmation of an award” are appealable under the
FAA. Id. at 259; 9 U.S.C. § 16(a)(1)(D). In rejecting this argument, the Fifth Circuit cited the
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United States Supreme Court’s holding in Hall Street that section 9 of the FAA requires the trial
court to confirm an award unless the award is vacated, corrected, or modified. Id. The Fifth Circuit
then concluded that an order “does not constitute an appealable order ‘denying confirmation’ …
unless the order vacates, modifies, or corrects the arbitral award.” Id.
Although Murchison and Deepwater Horizon provide authority for this court to dismiss
these appeals for lack of jurisdiction, the Texas Supreme Court’s decision in East Tex. Salt Water
Disposal Co. v. Werline holds that an order denying confirmation of an arbitration award is
appealable, citing the provision in the TAA stating that a party may appeal an award “confirming
or denying confirmation of an award.” 307 S.W.3d 267, 270 (Tex. 2010); TEX. CIV. PRAC. & REM.
CODE ANN. § 171.098(a)(3) (West 2011). Similarly, the FAA also contains a provision stating
that a party may appeal an order “confirming or denying confirmation of an award or partial
award.” 9 U.S.C. § 16(a)(1)(D). Although we recognize the Fifth Circuit’s holding to the contrary
in Deepwater Horizon, we read the plain statutory language as permitting an appeal of an order
denying confirmation. See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993)
(noting Texas appellate courts are “obligated to follow only higher Texas courts and the United
States Supreme Court”). Therefore, we conclude that we have jurisdiction to consider these
appeals, but we hold that the trial court erred in entering orders that neither confirmed the
arbitration awards nor vacated, modified, or corrected the awards as required by section 9 of the
FAA. See Hall Street Assocs., L.L.C., 552 U.S. at 587; Hamstein Cumberland Music Group, 532
Fed. Appx. at 543; 9 U.S.C. § 9. Because the trial court has not entered orders vacating the
arbitration awards, we do not have jurisdiction to consider the merits of the arguments relating to
whether the trial court would err in vacating the arbitration awards. See Rusk State Hosp. v. Black,
392 S.W.3d 88, 95 (Tex. 2012) (noting “the Texas Constitution does not afford courts jurisdiction
to make advisory decisions or issue advisory opinions”).
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CONCLUSION
The trial court’s orders are reversed, and the causes are remanded to the trial court for
further proceedings.
Catherine Stone, Chief Justice
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