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In re Roland's Roofing Co., Inc.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

October 23, 2019

IN RE ROLAND'S ROOFING CO., INC.

         On Petition for Writ of Mandamus.

          Before Chief Justice Contreras and Justices Hinojosa and Tijerina

          MEMORANDUM OPINION

          LETICIA HINOJOSA, JUSTICE. [1]

         By petition for writ of mandamus, relator Roland's Roofing Co., Inc. seeks to compel the respondent to rule on its motion to compel arbitration in the underlying subrogation case.[2] We conditionally grant the petition for writ of mandamus.

         I. Background

         On August 30, 2017, Nationwide Mutual Insurance Company (Nationwide) filed a subrogation claim against relator, LS Roofing, LLC, Luis Santisbon, and i3 Group, LLC.[3]According to Nationwide's first amended petition, relator had been retained to replace the metal roof on the IHOP restaurant located at 1900 S. Tenth Street in McAllen, Texas. Nationwide alleged that relator's actions during the construction project caused a fire resulting in significant property damage. Accordingly, Nationwide sought recovery of all sums that it had paid to the insureds pursuant to its policy of insurance on the property. Haidar Properties, LLC (Haidar), the entity that operated the IHOP, filed a petition in intervention, as did Elizabeth Barbara Harms, independent executrix of the estate of Frederick James Harms, who owned the building where Haidar operated the IHOP.

         On July 26, 2018, [4] relator filed a "Motion to Compel Arbitration and Motion for a Stay of Discovery and Further Proceedings." On August 2, 2018, Nationwide filed a response to relator's motion to compel arbitration, and on September 4, 2018, Haidar also filed a response to relator's motion to compel arbitration. On September 10, 2018, relator filed a combined reply to the responses filed by Nationwide and Haidar. That same day, LS Roofing, LLC and Santisbon filed a response in opposition to relator's motion to compel arbitration. On September 11, 2018, the presiding judge of the trial court at that time, the Honorable Juan Partida, held a hearing on relator's motion to compel arbitration. At the hearing, Judge Partida deferred ruling on the motion.

         On September 21, 2018, relator filed a "First Supplement" in support of its motion to compel arbitration. On September 25, 2018, Haidar filed a response. On December 3, 2018, relator filed a first supplemental reply to Haidar's response to relator's motion to compel arbitration. On December 7, 2018, Judge Partida signed an order granting relator's motion to compel arbitration providing that (1) all parties are compelled to arbitrate all claims, (2) all proceedings are stayed pending arbitration, and (3) all discovery is stayed pending arbitration.

         On December 26, 2018, Haidar filed a motion for reconsideration of the trial court's order compelling arbitration. On February 21, 2019, the newly elected judge of the 275th District Court, the Honorable Marla Cuellar, respondent herein, held a hearing on Haidar's motion for reconsideration. At the hearing, the respondent informed counsel that "all the parties should have an opportunity to present their arguments . . . before there is a ruling by the Court." She stated that she wanted to review the transcript from the September 11, 2018 hearing and wanted to provide the parties with "the opportunity to present evidence to the Court regarding the validity" of the contract containing the arbitration clause. The respondent ultimately held that:

So what the ruling of the Court is going to be as-I'm not saying that I'm not going to reconsider the motion for binding arbitration or your request for arbitration. I'm not going to say that I'm not going to consider that but I'm going to reconsider the order at that time. So, I'm going to set aside the order-Judge Partida's order on binding arbitration. I want to set a DCC. I want to look at the transcript and set a DCC and find out what the issues are. Even if we can come together-we can just sit here in court and what are the issues. How much time do you all need? I don't mind doing that. I don't mind sitting with everyone saying, well, how much time do you need. So that you are able to get what you need to prove your position or not prove your position to the court. I want to be able to give everyone that opportunity.

         The respondent expressly stated that she wanted to examine the contract and make an "informed" decision on arbitration. In response to a query from counsel, she orally affirmed that she was setting aside the December 7, 2018 order compelling arbitration.

         On April 9, 2019, relator filed a "Motion to Enforce Court's Order of December 7, 2018." Relator contended that the opposing parties were "delaying enforcement" of Judge Partida's order compelling arbitration and were merely "seeking a second bite of the apple." Relator asserted that the opposing parties were "injecting error" into the proceedings, citing precedent that motions to compel arbitration "should be resolved without delay." Relator provided a chronology of relevant events and requested that the respondent "avoid further delay" and enforce the order compelling arbitration.

         On May 13, 2019, Haidar filed a response to relator's motion to enforce, arguing that the motion was "frivolous" and arguing that the respondent had clearly ruled that she was setting aside the order compelling arbitration.

         On May 14, 2019, the respondent held an expedited hearing on relator's motion to enforce the order compelling arbitration. At the hearing, the respondent indicated that she would review the transcripts of the prior hearings on this matter and then was "either going to sign this order or I am going to set it." At the hearing, the respondent verbally indicated that she would issue a ruling that day. That same day, the respondent signed an "Order Granting Plaintiff's Motion for ...


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