En Banc Order and Dissent to En Banc Order filed December 13, 2018.




                                 In The

                  Fourteenth Court of Appeals

                          NO. 14-17-00558-CV


 MIKE HALL CHEVROLET, INC. D/B/A AUTONATION CHEVROLET
     HIGHWAY 6 F/K/A CHAMPION CHEVROLET HIGHWAY 6,
AUTONATION, INC., AUTONATION ENTERPRISES, INCORPORATED,
 AN DEALERSHIP HOLDING COMPANY, AND AUTO HOLDING LLC
        F/K/A AUTO HOLDING CORPORATION, Appellants
                                   V.
 ALEXANDRA DEIKE, F/K/A ALEJANDRA VALDEZ, INDIVIDUALLY
  AND ON BEHALF OF THE ESTATE OF ROSA ELVIA GUERRERO,
DECEASED, ARIANA DOMINGUEZ, INDIVIDUALLY AND ON BEHALF
 OF THE ESTATE OF RUBEN DOMINGUEZ, DECEASED, GREGORIO
ARMANDO DOMINGUEZ, EILEEN MEJIA, ANDREA ZERTUCHE, JOSE
      GUERRERO, EDUWIGES GUERRERO, DONALD CLARK,
INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE
  OF LINDA ANN HARTON CLARK, DECEASED, JENNIFER CLARK
                AND JOANNA CLARK, Appellees


                 On Appeal from the Probate Court No. 2
                          Harris County, Texas
                   Trial Court Cause No. 388,367-401

           DISSENT TO EN BANC ORDER
      Because I disagree with the en banc majority’s interpretation of Texas Rule
of Appellate Procedure 42.1 and the court’s conclusion that our record lacks clarity
as to whether a live controversy exists in this appeal, I respectfully dissent to the en
banc court’s order.

A live controversy continues to exist.
      Given the filings and the record it is clear that a live controversy continues to
exist with respect to the issues in this appeal. Recently, appellees Alexandra Deike,
f/k/a Alejandra Valdez, individually and on behalf of the Estate of Rosa Elvia
Guerrero, Deceased, Ariana Dominguez, individually and on behalf of the Estate of
Ruben Dominguez, Deceased, and Gregorio Armando Dominguez (collectively the
“Guerrero Plaintiffs”) and appellees Eileen Mejia, Andrea Zertuche, Jose Guerrero,
and Eduwiges Guerrero (collectively the “Mejia Intervenors”) filed “Appellees’
Joint Withdrawal of Opposition to Appellants’ Motion to Compel Arbitration,
Appellees’ Motion to Dismiss Appeal, and Appellees’ Motion to Dissolve the Stay
of Trial” (the “Motion to Dismiss”). In this motion the Guerrero Plaintiffs and the
Mejia Intervenors (collectively, the “Movants”) declare that they withdraw their
opposition to the appellants’ “Second Motion to Compel Arbitration,” but they do
not agree to the motion. The Movants suggest that because of their withdrawal of
their opposition, this court should dismiss the appeal as moot without taking any
action on the trial court’s order denying “Defendants’ Second Amended Motion to
Compel Arbitration and for Stay or Dismissal of Litigation” (the “Second Motion”).

      Though the Movants have advised this court that they have withdrawn their
opposition to the Second Motion, the things they have not done tell the real story:



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     They have not withdrawn their opposition to appellants’ request in the Second
      Motion that the trial court stay the litigation pending arbitration;

     They have not agreed that the Movants’ claims should be arbitrated;
     They have not agreed that the trial court should grant the Second Motion (This
      court has stayed only trial in the court below, and nothing has prevented the
      parties from filing an agreed motion in the trial court asking the trial court to
      compel arbitration and stay the litigation as requested by the appellants in the
      Second Motion);

     They have not agreed that the litigation should be stayed pending arbitration
      as appellants requested in the Second Motion; and

     They have not agreed that this court should reverse the trial court’s order
      denying the Second Motion.
       The trial court has not set aside or vacated its order denying the Second
Motion. The Movants have not agreed that the trial court erred in denying the
Second Motion. Even if the Movants had failed to oppose the Second Motion when
the trial court considered and ruled on it more than a year ago, this failure to oppose
the motion would not have required the trial court to grant the Second Motion, nor
mandated the conclusion that the trial court erred in denying the motion.1

       In their last filing in this court on November 20, 2018, the appellants asserted
that this appeal is not moot and asked the en banc court to dispose of the merits of
this appeal. Despite the Movants’ recent withdrawal of opposition to the Second
Motion, an actual controversy exists as to whether (1) the trial court erred in denying
the Second Motion, (2) the Movants should be compelled to arbitrate their claims


1
  See Mehanna v. Int’l Gourmet Foods, Inc., No. 05–11–01548–CV, 2013 WL 1838600, at *2
(Tex. App.—Dallas Mar. 26, 2013, no pet.) (concluding that the trial court did not err in denying
plaintiff’s unopposed motion) (mem. op.).



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against the appellants, and (3) the claims pending in the trial court should be stayed
or dismissed.
         There is no indication in the record that the parties have agreed to the terms
mentioned in today’s en banc order.2 And, there is no need to ask the parties whether
they agree to the terms in the en banc order because the disposition the majority
describes would not moot this appeal.

Even if the parties agreed to the matters mentioned in the en banc order, this
court could not reverse the trial court’s order without first finding error in it.
         Even if the parties were to file with this court a Rule 42.1(a)(2) agreement as
to the terms stated in the en banc order, this court still would have to address the
merits of the pending appeal before we could reverse the trial court’s order based on
the agreement.3 The Notes and Comments to Rule 42.1 expressly state that the rule
“does not permit an appellate court to order a new trial merely on the agreement of
the parties absent reversible error, or to vacate a trial court’s judgment absent
reversible error or a settlement.”4 The parties have not settled. In this context,
Rule 42.1 and courts adhering to it demand that the appellate court find reversible
error in the trial court’s order before the appellate court may reverse a trial court’s
order based on the agreement of the parties on appeal.5 Thus, even if the parties

2
  In its order, the en banc court asks the parties to indicate “whether they agree pursuant to Texas
Rule of Appellate Procedure 42.1 to a disposition on appeal by which this court (1) reverses the
trial court’s order denying the Second Motion to Compel Arbitration and for Stay or Dismissal of
Litigation; (2) orders the panel’s June 12, 2018 Opinion withdrawn and judgment vacated;
(3) remands this case to the trial court for further proceedings consistent with the unopposed
Defendants’ Second Amended Motion to Compel Arbitration and for Stay or Dismissal of
Litigation; and (4) dissolves the October 12, 2018 stay issued by this court of a trial in Cause No.
388,367-401 in Probate Court No. 2, Harris County, Texas.”
3
    See Tex. R. App. P. 42.1(a)(2) & Notes and Comments.

4
    (emphasis added).

5
    Tex. R. App. P. 42.1(a)(2) & Notes and Comments; see, e.g., In re K.E., No. 07-13-00082-CV,
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were to agree to the terms in the en banc order, this court still would have to address
the merits of this appeal before the en banc court could reverse the trial court’s
order.6




                                             /s/       Kem Thompson Frost
                                                       Chief Justice

En Banc Court consists of Chief Justice Frost and Justices Boyce, Christopher,
Jamison, Busby, Donovan, Brown, Wise, and Jewell. (Frost, C.J., dissenting).
Publish




2013 WL 3090795, at *2 (Tex. App.—Amarillo June 11, 2013, no pet.) (mem. op., per curiam).
6
    See Tex. R. App. P. 42.1(a)(2) & Notes and Comments; In re K.E., 2013 WL 3090795, at *2.


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