## In the Court of Appeals Second A ppellat e District of Texa s at Fort Worth

___________________________ No. 02

- 22

- 00147

- CV

___________________________

On App eal fro m the 271st District Court

Jack County, Texas Trial Court No. 15

- 02

- 019

Before Womack , W allach, and Walker, JJ. Memorandum Opinion by Justice Womack 

### N ATHAN 

### R OBINSON AND 

### M ISTI 

### R OBINSON 

### , I NDIVIDUALLY AND AS 

### R EPRESENTATIVES OF 

### A LL 

### P ERSONS 

### S I MILARLY 

### S ITU AT ED 

### , Appellants

V


### . H OME 

### O WNERS 

### M ANA GEMENT 

### E NTERPRISES 

### , I NC


### . D 

### / B 

### / A 

### H OME OF 

### T EXAS AND 

### W

ARRANTY 

### U NDERWRITERS 

### I NSURANCE 

### C OMPANY 

### ,

Ap pell ee s2 MEMORANDUM OPINION This appeal is the latest cha pter of an o ngoing saga between Appellants Nathan and Mis ti Robinson and th e companies that provide d warranty pro tection for construction defects in their home

— Appellees Home Owners Management Enterpri ses, Inc. d/b/a Home of Texas and Warranty Underwriters Insurance
C ompany (co llectively Home of Texas)

. In a pr evious chapter of th is saga, we reversed the trial court ’ s grant of summary judgment to Home of Texas , remanded
the case to the trial court, and ordered that “ the question of whether the Robinsons ’
i ndividual re lease

- related claims are barred by res judica ta be referred to the arbitrator previousl y appointed to hear the Rob inson s ’ individual claims. ” Robinson v. Home Owner s Mgmt. Enters., Inc. ( Robinson II ) , No. 02

- 20

- 00215

- CV, 2021 WL 924839, at *16 (Tex. App.

— Fort Worth Mar . 11, 2021, pet. denied) (mem. op.) ; see also Ro bi nson v. Home Owners Mgmt. Enters, Inc. ( Robinson I ) , 590 S.W.3d 518 (Tex. 2019)

. Following our rem and, the trial c ourt signed an order (the Order) referring “ the question of whet her the Robi nsons ’ individual rele ase
- related clai ms are barred by re s judicat a . . . to Arbitrator David S [ei] dler ”

— the arbitrator previously appointed to hear the Robinson s ’ individual claims

— and s taying “ [a]ll other matters in this

caus e . . . until the Arbitrator renders his decisio n on res judicata. ” The Order was
sil ent wit h respect to a mo tion filed by the Robinsons that was heard at the same
time

— a motion that requested that the trial court sign an order reaffirming that all of the Robinson s ’ individual claims had already been comp elled to arbitration (the3

Motion)

. The Robinsons now attempt to appeal the Order , complaining that the trial

court refused “ to comp el certain specific matters to arbitration

. ” On A pril 28, 20 22, we notified the Robinsons of our conc ern that we lack jurisdic tion ov er this ap peal because the Order d oes not ap pear to be an a ppealable interlocutory order

. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.016, 171.098(a) ; see also id

. § 51.014

. We stated that we would permit the parties “ a rea sonable time to obtain a signed, appeal able order. ” We informed the Robinsons that unless they or
any par ty desir ing to contin ue t he appeal filed a response by May 18, 2022, sho wing grounds for continuing the appeal, we could dismiss the appeal for want o f jurisdicti on. See Tex. R. App. P. 42.3(a), 44.3

. In a Ma y 18, 2022 response to our letter, the Robinsons reques ted a dd itional
ti m e to address our jurisdictional concern , notin g that they had requested a hearing in the trial court to address the Order an d the Motion

. We sent the Robinsons anothe r letter, again stating that we would permit the parties “ a reas onable time to obtain a signed, appealable order, ” and we requested that the Robinsons file a response by June 1, 2022. On June 7, 2022, the Ro binso ns sent us a letter stating that their attempt s to obtain a ruling on the Motion from the tria l court had been un successful

. Th at same day, th e Robinsons filed a petition for writ of mandamus , complaining that the trial court had abu sed its discretion by refusing to rule on the Motion

. On August 4, 2022, we deni ed the Robinsons ’ petition for writ of mandamus, holding t hat the trial court ’ s failure to r ule on the Motion did not constitute an abuse of discretion.4

In re Robinson ( Robinson III ) , No. 02

- 22

- 00 214

- CV, 2022 WL 3097330, at *4 (Tex. App.

— Fort Worth Aug. 4 , 2022, orig. proceeding) (mem. op.). Turning back to the present ap peal, generally , a ppeals may be taken only from final judgments or interlocutory orders that are authorized by statute. Lehmann v. Har

Con Corp. , 39 S.W.3d 19 1, 195, 200 (Tex. 2001). Wh e re a ma tter is subject to the Federal Arbitration Act

— as t he present matter is here 1

— “ a n interlocutory appeal may be taken from an order denying an app licatio n to comp el arbitration. ” Branch L . Fi rm L.L.P. v. Osborn , 532 S.W.3d 1, 10 (Tex. App.

— Houston [1 4th Dist.] 2016, pet. denied) (citing 9 U.S.C. § 16(a)(1 )(C) and Tex. Civ. Prac. & Rem Code Ann. § 51.016). An interlocutory appeal is not permitted, however , when a trial court ’ s order simply de f ers ruling on a motion to compel arbitration. ReadyOne Indus. , Inc. v. Torres , 394 S.W.3d 720, 723 (Tex. App.

— El Pas o 2012, no pet.). Here, the Order is silent with respect to the Motion ; indeed, the Rob inso ns file d a petition for writ of mandamus seeki ng to compel the trial court to rule on their
Motion. 2 Thus, we do not have a situation in which the trial court has denied an application to compel arbitration

. 3 See Branch L. Firm L .L.P. , 532 S.W.3d a t 10

. As

1 See Robinson I

, 590 S.W.3d at 522 (noting that subj ect pr ovision is governed by the Federal Arbitration Act).

2 In their petition for wri t of mandamus, the Robinsons noted that they “have no remedy by appeal. ”

3 Indeed, as we recognized in Robinson III , Home of Texas acknowledge d in its mandamus response that the R obinson s ’ individual claims were already in arbitration ;5

the Order does not contain a den ial of an application to compel arbitration, the Order
is not a n appealable interlocutory order. S ee id. Accordingly, we dism iss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).
/s/ Dana Wo mack
Dana Womack Justice Delivered: August 31, 2022

thus, as we s tated in Robin son III , “ [t]here is no longer any real dispute between the parties regarding arbitrability of the individual clai ms. ” 2022 WL 3097330, at *2.