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NUMBER 13-05-277-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE: WASHINGTON MUTUAL FINANCE, L.P.,
FELA CAVAZOS, DAVID GONZALEZ, CARMEN GONZALEZ,
REY GONZALES, AND ADELAIDO GONZALES,
On Petition for Writ of Mandamus
DISSENTING OPINION
Before Justices Rodriguez, Castillo and Garza
Dissenting Opinion by Justice Castillo
In this original mandamus proceeding, relators request that we direct the trial court to vacate the order denying their motion to compel arbitration (1) on the merits or, alternatively, (2) on grounds that the trial court failed to convene an evidentiary hearing. Granting relief on relators' alternative ground, the majority concludes that the trial court abused its discretion (1) by sustaining a defense to arbitration (2) without holding an evidentiary hearing (3) to determine disputed issues of material fact. For the reasons that follow, I respectfully dissent.
Mandamus Relief
Although the writ of mandamus is a discretionary remedy, its use is subject to certain conditions. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). We may issue writs of mandamus "agreeable to the principles of law regulating those writs." See id. (citing Tex. Gov't. Code Ann. ' 22.221(b) (Vernon 2004)). Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law. Id. (citing State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984)); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)).[1] We, therefore, act in excess of our writ power when we grant mandamus relief absent these circumstances. See Johnson, 700 S.W.2d at 917 (citing Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985)).
When the writ of mandamus is sought to correct a clear abuse of discretion by the trial court, the judicial function should be limited to an inquiry as to whether there was any controversy over the facts or conditions on which the judge acted or which he could properly consider. Bush v. Vela, 535 S.W.2d 803, 805 (Tex. App.BCorpus Christi 1976, no writ) (citing Maresca v. Marks, 362 S.W.2d 299, 301 (Tex. 1962)). If there is a reasonable doubt concerning the existence or nonexistence of facts or conditions on which the action was predicated, we are powerless to revise or disturb the action. See id. On the other hand, if the fact situation is such in which there is no room for the exercise of discretion, the action of the trial court is subject to control by mandamus. Id.
The Record
The trial court convened two hearings on relators' motion to compel arbitration. During the first hearing on May 3, 2004, the trial court heard arguments of counsel on the merits and did not issue a ruling. Subsequently, real-parties-in-interest filed a motion to supplement the record and a motion for an evidentiary hearing, asserting, among other things, unconscionability.[2] Relators filed responses opposing both motions.[3] The trial court convened a second hearing on January 31, 2005, on both motions. At that hearing, relators argued that (1) the motion to compel was "fully heard" and "fully considered" at the first hearing held in May, (2) "everything was before the Court in May on this summary proceeding," and (3) the hearing was a "[s]ummary proceeding under the law." Stating that it would take the matter under advisement, the trial court pronounced, "If I need to hear any other additional testimony or evidence, I will letBadvise both offices and you'll have a ruling in reference to this by Friday at 5:00 . . . ." Neither party objected. Subsequently, the trial court denied the motion to compel arbitration by written order. This original proceeding ensued.
Analysis
Declining to address relators' ground on the merits of the motion to compel arbitration, the majority concludes that the trial court abused its discretion because it sustained the real-parties-in-interest's defense to arbitration without providing an evidentiary hearing. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992). The majority grants mandamus relief and orders "an evidentiary hearing on any disputed issues of material fact related to the defense" to arbitration real-parties-in-interest advanced. By its writ, the majority grants relief on relators' alternate ground before usBa ground they argued to the trial court was unnecessary, untimely, and unavailable to the real-parties-in-interest below. On this record, an evidentiary hearing that was argued as not mandatory to an arbitration opponent below has become mandatory to an arbitration proponent by virtue of mandamus relief.
Respectfully, I would hold that, by its ruling, the trial court implicitly agreed with relators that it need not hear additional testimony or evidence. Thus, by its ruling, the trial court implicitly agreed with relators that an evidentiary hearing was unnecessary and proceeded to rule on the merits of relators' motion to compel arbitration. The trial court denied the motion but, implicitly, granted relators' motion to proceed "as a matter of law."[4]
Respectfully, I would honor the basic tenets that require (1) a party to present a complaint to the trial court first before seeking appellate relief, see e.g. Tex. R. App. P. 33.1, and (2) that the grounds for relief before the appellate court comport to the complaint raised to the trial court. See id. Because the majority expressly grants relief on relators' alternative grounds not requested below, respectfully, I conclude we are powerless to grant mandamus relief. Bush, 535 S.W.2d at 805. Because I conclude we are powerless to grant relief on grounds not expressly requested first to the trial court, I respectfully dissent.
ERRLINDA CASTILLO
Justice
Dissenting Opinion delivered and filed
this the 26th day of August, 2005.
[1] A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). This standard, however, has different applications in different circumstances. Id. With respect to resolution of factual issues or matters committed to the trial court's discretion, for example, the reviewing court may not substitute its judgment for that of the trial court. Id. The relator must establish that the trial court could reasonably have reached only one decision. Id. at 840. On the other hand, review of a trial court's determination of the legal principles controlling its ruling is much less deferential. Id. A trial court has no "discretion" in determining what the law is or applying the law to the facts. Id. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Id.
[2] On the day of the hearing, the real-parties-in-interest filed a motion to strike the affidavits attached to relators' motion to compel based, in part, on grounds that the affidavits were "not based on personal knowledge," were conclusory and self-serving and, thus, not competent evidence to support the motion to compel. Relators countered that the "affidavits have been on file for almost a year."
[3] Relators asserted in their response that, even if the trial court accepted the affidavits filed in support of the motion filed by the real-parties-in-interest attesting to unconscionability, the motion to compel should be granted as "a matter of law."
[4] In short, the trial court could have concluded that, among other things, the relators' motion and evidence were insufficient as a matter of law to prove that the FAA applied or that the claims fell within the scope of the agreements. See Jack B. Anglin Co., 842 S.W.2d at 269; Prudential Sec. v. Banales, 860 S.W.2d 594, 597 (Tex. App.BCorpus Christi 1993, no writ) (orig. proceeding) (requiring summary disposition on the merits after finding that the opposing party's failure to follow the first step of presenting proper controverting evidence denies him the right to proceed to the second step of an evidentiary hearing). If so, then the trial court could have concluded that relators failed in their burden and, thus, the burden, if any, never shifted to the real‑parties‑in‑interest. See id. Without deciding the merits of the motion to compel, however, I conclude that a summary proceeding under those circumstances was proper. The record, however, does not establish the grounds on which the trial court denied arbitration.