In Re Santander Consumer USA, Inc.

Concurring Opinion issued February 21, 2013

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00728-CV
———————————
IN RE SANTANDER CONSUMER USA, INC., Relator

Original Proceeding on Petition for Writ of Mandamus

CONCURRING OPINION

I respectfully concur in the denial of the petition for writ of mandamus filed

by relator Santander Consumer USA, Inc. I would deny the petition on the ground

that Texas Civil Practice and Remedies Code section 51.016, allowing an

interlocutory appeal of an order denying a motion to compel arbitration under the

Federal Arbitration Act (“FAA”), provides Santander a plain, adequate, and

complete remedy for the trial court’s allegedly wrongful denial of its motion to
compel; Santander failed to timely avail itself of its remedy and therefore waived

it. The majority holds—correctly, in my opinion—that mandamus does not lie

under the circumstances of this case. But, in the mistaken belief that it must either

“state a blanket rule that mandamus is never available when a party does not take

an interlocutory appeal from an order denying a motion to compel arbitration” or

“consider only the circumstances presented by this case and . . . make a narrow

holding that Santander has not demonstrated it entitlement to the writ here,” slip

op. at 12, it refuses to rule that section 51.016 provides an adequate remedy by

appeal for a litigant who, like Santander, fails to meet the statutory deadline for

filing an interlocutory appeal without any showing of legal or factual excuse. See

Slip. Op. 11.

When, as here, a court refuses to make a rule applicable under the

circumstances of a case and justifies its refusal to rule on the ground that it cannot

make a rule applicable in all cases under all circumstances, its justification is an

advisory opinion on an abstract question of law. This type of opinion is expressly

forbidden by both the United States Constitution and by the Texas Supreme Court.

See U.S. CONST. art. III, § 2, cl. 1; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 444 (Tex. 1993) (applying Article III to Texas cases; stating, “The

distinctive feature of an advisory opinion is that it decides an abstract question of

law without binding the parties”; holding that opinion is advisory when, “rather

2
than remedying actual or imminent harm, the judgment addresses only a

hypothetical injury”; and concluding that, to comport with Article III’s limitation

of judicial power to “cases” and “controversies,” court may hear case only when

litigant has been threatened with or has sustained injury). The United States

Supreme Court explains the constitutional basis for the rule in Cohens v. Virginia,

stating,

It is a maxim not to be disregarded, that general expressions, in
every opinion, are to be taken in connection with the case in which
those expressions are used. . . . The reason for this maxim is obvious.
The question actually before the Court is investigated with care, and
considered in its full extent. Other principles which may serve to
illustrate it, are considered in their relation to the case decided, but
their possible bearing on all other cases is seldom completely
investigated.

19 U.S. (6 Wheat.) 264, 399–400 (1821). Moreover, in this case, the law is thrown

into confusion and litigants are erroneously invited to submit each case in which a

motion to arbitrate under the FAA is denied by both interlocutory appeal and

mandamus—exactly the problem the interlocutory appeal statute was designed to

cure.

Because I believe the majority’s opinion is advisory and thus violates the

“cases and controversies” clause of the Texas and United States Constitutions,

introduces a lack of clarity and finality into the law, undermines Civil Practice and

Remedies Code section 51.106, and reintroduces the problem solved by the statute

by inviting the filing of duplicative mandamuses along with interlocutory appeals
3
when a motion to arbitrate under the FAA is denied by the trial court, I concur in

the result only.

The Civil Practice and Remedies Code provides for immediate, interlocutory

review of the denial of a motion to compel arbitration under the FAA. TEX. CIV.

PRAC. & REM. CODE ANN. § 51.016 (Vernon Supp. 2012) (providing, for cases

brought in Texas state courts, “In a matter subject to the [FAA], a person may take

an appeal . . . to the court of appeals from the judgment or interlocutory order of a

district court, county court at law, or county court under the same circumstances

that an appeal from a federal district court’s order or decision would be permitted

by 9 U.S.C. Section 16.”); see also 9 U.S.C.S. § 16(a)(1)(C) (LexisNexis 2008)

(FAA provision permitting appeals of orders denying application to compel

arbitration); CMH Homes v. Perez, 340 S.W.3d 444, 448−49 (Tex. 2011)

(explaining that section 51.016 provides for interlocutory appeals in FAA cases in

Texas state court so long as “it would be permitted under the same circumstances

in federal court under section 16”). Santander, however, did not avail itself of its

right to appeal the trial court’s order under section 51.016. Instead, after the

expiration of the statutory deadline for filing an interlocutory appeal, Santander

challenged the trial court’s order by petition for writ of mandamus.

Under established law, “mandamus will not issue when the law provides

another plain, adequate, and complete remedy.” In re Tex. Dep’t of Family &

4
Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006) (orig. proceeding); see also In

re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 207

(Tex. 2009) (orig. proceeding) (“Mandamus should not issue to correct grievances

that may be addressed by other remedies.”). Thus, under the plain letter of the law

and the undisputed facts of this case, mandamus may not issue.

As the majority acknowledges, in 1992, the Texas Supreme Court

determined that interlocutory appeal of the trial court’s denial of a motion for

arbitration under the FAA was not available in Texas state court when suit was

brought under the Texas Arbitration Act (“TAA”) but was found to be preempted

by the FAA. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992)

(orig. proceeding). The court reasoned that appeal from a Texas court order was a

procedural matter not governed by the provisions in the FAA itself. See id. The

court observed that both the TAA and the FAA permitted an appeal from an

interlocutory order granting or denying a request to compel arbitration, but,

“[u]nder Texas procedure”—which must be applied by Texas state courts—an

order denying arbitration under the FAA did not fall within the statutory

exceptions allowing an interlocutory appeal, as would an order denying arbitration

under the TAA. Id. at 271–72. It determined that mandamus was the appropriate

remedy when a party was denied the right to arbitrate in a case filed under the FAA

or found to be preempted by the FAA, stating, “Although we can conceive of no

5
benefit from such an unnecessarily expensive and cumbersome rule, we may not

enlarge appellate jurisdiction absent legislative mandate.” Id. at 272.

After well over a thousand cases had been filed in the Texas courts of

appeals as both an interlocutory appeal and a duplicative petition for mandamus

because of the Jack B. Anglin decision, the Legislature finally responded to the

problem and closed the gap by enacting Civil Practice and Remedies Code section

51.016, which authorizes interlocutory appeals of suits that are filed in state courts

after September 1, 2009 and are brought under the FAA. See Act of May 27, 2009,

81st Leg., R.S., ch. 820, § 2, 2009 Tex. Gen. Laws 2061 (codified at TEX. CIV.

PRAC. & REM. CODE ANN. § 51.016); see also Perez, 340 S.W.3d at 448−49

(explaining that section 51.016 provides for interlocutory appeals in FAA cases so

long as “it would be permitted under the same circumstances in federal court under

section 16”); SENATE COMM. ON STATE AFFAIRS, BILL ANALYSIS, TEX. S.B. 1650,

81st Leg., R.S. (2009) (noting that purpose of enacting section 51.016 was to

alleviate unnecessary expense and burden of parties having to pursue parallel

proceedings to seek review of orders denying motions to compel arbitration under

TAA and FAA). This is one such case.

Santander does not dispute that section 51.016 confers a right to prosecute

an accelerated, interlocutory appeal of the trial court’s order denying the motion to

compel arbitration in this case. Nor does Santander explain why a timely filed

6
interlocutory appeal would not have been an adequate remedy in this case. The

arbitration provision at issue explicitly designates arbitration pursuant to the FAA;

Santander’s motion to compel specifically requested arbitration under the FAA;

and the parties both stated that arbitration would be conducted under the FAA in

their briefing to this Court. Moreover, although the underlying case was filed on

December 20, 2011, more than two years after section 51.016’s effective date,

Santander did not, and has not, offered any explanation for why it failed to timely

file a notice of accelerated, interlocutory appeal. See TEX. CIV. PRAC. & REM.

CODE ANN. § 51.016.

Santander argues only that because section 51.016 does not require an

interlocutory appeal of the trial court’s order, but states that a party may file an

interlocutory appeal, Santander may also pursue mandamus relief. In support of its

argument, it cites to supreme court authority predating the enactment of section

51.016. See Act of May 27, 2009, 81st Leg., ch. 820, § 2, 2009 Tex. Gen. Laws

2061 (stating law becomes effective on September 1, 2009); see, e.g., In re D.

Wilson Constr. Co., 196 S.W.3d 774, 780 (Tex. 2006) (orig. proceeding); Jack B.

Anglin, 842 S.W.2d at 272. The authority cited by Santander is thus inapplicable

because it has been superseded by the statute that the real party in interest alleges

provides an adequate remedy by appeal in this case—section 51.016.

7
 The supreme court recognized mandamus as the appropriate remedy for the

wrongful denial of motions to compel arbitration under the FAA only because,

prior to the enactment of section 51.016, there was no alternative appellate remedy.

See In re Reece, 341 S.W.3d 360, 374−75 (Tex. 2011) (orig. proceeding); Jack B.

Anglin, 842 S.W.2d at 272. Thus, mandamus functioned as a “statutory ‘gap-

filler.’” Reece, 341 S.W.3d at 395 (Willett, J., dissenting). This case is, however,

clearly distinguishable from the cases in which parties challenging the denial of a

motion to compel arbitration under the FAA were granted mandamus relief in the

past because the statutory gap with respect to the availability of immediate

appellate review no longer exists. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.016. Thus, unlike the parties seeking relief before section 51.016’s

enactment, Santander had an avenue for immediate appellate review of the trial

court’s order denying its motion to compel arbitration under the FAA. See id. (“In

a matter subject to the [FAA], a person may take an appeal . . . to the court of

appeals from the judgment or interlocutory order of a district court, county court at

law, or county court under the same circumstances that an appeal from a federal

district court’s order or decision would be permitted by 9 U.S.C. Section 16.”); 9

U.S.C.S. § 16(a)(1)(C) (permitting appeals of orders denying application to compel

arbitration); see also TEX. R. APP. P. 29.3 (authorizing appellate courts to “make

8
any temporary orders necessary to preserve the parties’ rights until disposition of

the [interlocutory] appeal . . . .”).

As the majority notes, the other courts of appeals that have been presented

with the issue in this case since section 51.016 was enacted have dismissed

petitions for writ of mandamus challenging the trial court’s denial of arbitration

under the FAA, citing section 51.016 without substantive discussion of the change

in the law. See, e.g., In re H.D. Vest, Inc., 334 S.W.3d 333, 334 (Tex. App.—El

Paso 2010, orig. proceeding) (denying petition for writ of mandamus because

section 51.016 afforded relator appellate review of order denying motion to compel

arbitration under FAA); In re Green Tree Servicing, LLC, No. 04-12-00277-CV,

2012 WL 1744264, at *1 (Tex. App.—San Antonio May 16, 2012, orig.

proceeding) (mem. op.) (same); In re Tutle & Tutle Trucking, Inc., No. 05-10-

01234-CV, 2010 WL 3946443, at *1 (Tex. App.—Dallas Oct. 11, 2010, orig.

proceeding) (same); In re Unit Tex. Drilling, LLC, No. 13-10-00267-CV, 2010 WL

2696603, at *1 (Tex. App.—Corpus Christi July 6, 2010, orig. proceeding) (mem.

op.) (same). Like the other courts that have considered this issue, I would

conclude that Santander had a fully adequate appellate remedy in the form of an

interlocutory appeal pursuant to section 51.016 that it failed to exercise. Therefore,

I would hold that Santander is not entitled to a writ of mandamus.

9
 In my view, the majority radically mistakes the question in this case. The

question is not whether mandamus will ever lie under some circumstances not

present here when a party has missed the deadline for filing an interlocutory appeal

under section 51.016. The real question is whether section 51.016 provides an

adequate and complete remedy by appeal when a trial court has denied a motion to

compel arbitration under the FAA. The answer is “yes.” Santander failed to

comply with the terms of the statute. Therefore, as in any other case, it lost its

remedy through its own fault and may not, by its wrongful action, secure a

different one through mandamus. The majority correctly holds that Santander is

not entitled to mandamus on the facts of this case. But by misstating the question

presented by the case as a global one, and not a particular one, and then by

proceeding to answer the question posed by the case by refusing to establish a rule

applicable to the particular circumstances presented by this case and going on to

advise that it might grant mandamus under circumstances not presented by this

case, the majority writes an improper advisory opinion. The mischief done,

however, does not stop with this case. Permitting mandamus under the

circumstances presented in this case, as Santander requests—or in any materially

similar case—would effectively eliminate the requirement that appeals from

interlocutory orders must be filed within twenty days after the challenged order is

signed and would work against the “main purpose of the interlocutory appeal

10
statute, which is to increase efficiency of the judicial process.” City of Houston v.

Estate of Jones, No. 10-0755, 2012 WL 6634065, at *4 (Tex. Dec. 21, 2012)

(construing Civil Practice and Remedies Code section 51.014(a)(8)) (citing TEX. R.

APP. P. 26.1(b), 28.1(1), and Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835,

845 (Tex. 2007)). By refusing to hold that section 51.016 provides an adequate

remedy by appeal for a complaint that a party was wrongfully denied arbitration

under the FAA, the majority vitiates the certainty of the interlocutory appeal statute

in a class of cases in which its terms are clearly violated. It also commits this

Court to an open door policy in which mandamuses will continue to be filed along

with interlocutory appeals in the hope that the Court will find that the

circumstances of the particular case meet its unannounced criteria for permitting a

mandamus in lieu of an interlocutory appeal of denial of a motion to arbitrate, even

though it failed to find such circumstances in this case.

The Texas Courts of Appeals are required by Texas Rule of Appellate

Procedure 47.1 to decide every issue presented to the court by the parties and

necessary for the disposition of the case. See TEX. R. APP. P. 47.1 (“The court of

appeals must hand down a written opinion that is as brief as practicable but that

addresses every issue raised and necessary to final disposition of the appeal.”). We

are also required by our mandate under the United States Constitution to decide

11
only ripe cases and controversies. See U.S. CONST. art. III, § 2, cl. 1; Cohens, 19

U.S. (6 Wheat.) at 399–400; Tex. Ass’n of Bus.., 852 S.W.2d at 444.

I would hold that Santander had a plain, adequate, and complete appellate

remedy for any error made by the trial court in denying its motion to compel

arbitration and that it clearly violated the statutory procedures for availing itself of

that remedy. Therefore, I would deny the petition for writ of mandamus.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Justice Keyes, concurring.

12