In In re AXA Financial, Inc., the Third Court of Appeals has consolidated a mandamus with an interlocutory appeal from an order denying the defendants’ motion to compel arbitration. To be honest, this event is not terribly noteworthy, but with the legislature in session, it seems timely to mention the procedural gaffe that triggers such parallel proceedings.
Basically, while the legislature has authorized an interlocutory appeal from an order denying arbitration under the Texas statute, our courts have uniformly held that no corresponding statutory remedy exists when the Federal Arbitration Act is in play. Lawyers attempting to enforce an arbitration clause most often seek relief under both statutes for fear they will pick the wrong one. When denying relief, trial courts usually don’t explain their reasoning, leaving the movant’s counsel no choice but to pursue both an appeal and a mandamus, with the Texas Supreme Court’s blessing. At the supreme court’s behest, the intermediate appellate courts routinely consolidate the parallel actions.
As others have written before me, this is a silly rule that ought to be corrected. (Some, most notably Heidi Bloch, say it already has been; the courts just don’t recognize the change.) The legislature could prevent the waste of having to bring two separate actions, only to have them consolidated, by tweaking the appellate provisions of the Texas General Arbitration Act. Unfortunately, with the time for filing new bills passed, it will be at least 2009 before common sense can prevail.