# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N os. 04
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v. FLAGSHIP HOMES, LTD. d/b/a Prestige Homes, Appellee From the 288th Judicial District Court, Bexar County, Texas Trial Court Nos. 2014
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- 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 or ders 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 the04
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- CV petitions to conf irm. Accordingly, we reverse the trial court’s orders and remand the causes to the trial court for further proceedings. B ACKGROUND The appellants purchased homes from the appellee, Flagship Homes, Ltd. d/b/a Prestige Homes, and subsequently made claims al leging 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 f avor 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. D ISCUSSION 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 in terstate 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 “unles s 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’ ex ceptions 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 T EX . R. A PP . P. 47.1 (providing that appel late 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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- CV (2008); see also Hamstein Cumberland Music Group v. Williams , 532 Fed. Appx. 538, 543 (5 th Cir. 2013) (quoting Hall Street and noting trial court is required to grant an ord er 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 th at 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 w hen 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 (5 th 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 appe alable 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, th at “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
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- pocket damages.” Id . at 421. The Fifth Circuit held that it lacke d 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 (5 th 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 a ppealable 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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- CV 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 aw ard 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 app ealable, 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); T EX . C IV . P RAC . & R EM . C ODE A NN . § 171.098(a)(3) (West 2011) . Similarly, the FAA also con tains 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 plai n 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 Su preme 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 b y s ection 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 mak e advisory decisions or issue advisory opinions”).

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- CV C ONCLUSION 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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