      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-13-00081-CV



      Twenty First Century Holdings, Inc. d/b/a American Geothermal Systems, Inc.;
                    Victor DeMarco; and N. West Short, Appellants

                                                 v.

                        Precision Geothermal Drilling, L.L.C., Appellee


           FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY,
         NO. C-1-CV-12–12503, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In this interlocutory appeal, Twenty First Century Holdings, Inc. d/b/a American

Geothermal Systems, Inc. (AGSI); Victor DeMarco; and N. West Short appeal the county court’s

denial of their Petition for Writ of Mandamus and Interlocutory Appeal. In the petition, appellants

sought a writ of mandamus compelling the justice court to rescind its order vacating dismissal of the

suit, to vacate its sanctions award, and to order arbitration and, in the alternative, sought

interlocutory appeal of the justice court’s order denying the motion to compel arbitration. For the

reasons that follow we affirm in part and dismiss in part for want of jurisdiction.
                     FACTUAL AND PROCEDURAL BACKGROUND

               AGSI is a geothermal HVAC company owned by DeMarco.1 DeMarco formed a

drilling company named Precision Geothermal Drilling (PGD) with Patricia Denny to perform

drilling work for companies like AGSI. PGD was formed as a limited liability company (LLC), with

Denny as 51% owner, DeMarco as 49% owner, and both as managers. See generally Tex. Civ. Prac.

& Rem. Code §§ 101.001–.621 (governing limited liability companies). AGSI contracted with PGD

for its drilling work, and disputes soon arose between DeMarco and Denny over the drilling work

and payment. Denny filed suit in justice court on behalf of PGD for breach of contract against AGSI

seeking to recover approximately $8,000.00.2 DeMarco filed an answer on behalf of AGSI. A trial

was held, and the justice court granted judgment for PGD. AGSI filed a motion for new trial, which

was granted.

               The parties subsequently reached a settlement agreement in principle, which included

mutual releases and called for AGSI to pay PGD $5,100. During negotiations over the final details

of the settlement, a dispute arose between Denny and DeMarco over the operation of PGD, and

DeMarco accused Denny of unauthorized acts. DeMarco requested certain records from Denny,

some of which she withheld pending his agreement to release his personal claims against her. Based

on the records Denny did provide to DeMarco, DeMarco concluded she had mishandled the business

and engaged in self-dealing. When DeMarco continued to refuse to release his personal claims

       1
         Geothermal HVAC systems involve drilling multiple ground loops that extend several
hundred feet into the earth through which liquid is circulated in order to cool the air using the
temperature of the earth rather than the outside air.
       2
       Although it appears that Denny—not PGD counsel—filed the suit, the record reflects that
PGD was represented by counsel both before and after suit was filed.

                                                2
against Denny in the settlement agreement, Denny set the case for trial. Prior to trial, DeMarco or

Short, AGSI’s counsel, drafted a settlement agreement releasing all claims against both companies

and DeMarco, and DeMarco signed it on behalf of both companies and himself and filed a nonsuit

on behalf of PGD. The settlement agreement included a clause providing that any disputes arising

out of the settlement agreement “shall be first submitted to mediation . . . [and] in the event such

mediation is unsuccessful . . . the dispute shall be settled by binding arbitration.” Both the settlement

agreement and the nonsuit were signed by DeMarco only, and not by Short, although the record

reflects that Short represented DeMarco in virtually all other matters related to this dispute and suit.

                PGD filed a motion to set aside the nonsuit or in the alternative motion for new trial,

and the justice court vacated the dismissal it had entered after DeMarco filed the nonsuit. PGD

subsequently filed a motion to show authority and for sanctions, stating it had reason to believe Short

had drafted the settlement agreement and nonsuit, which was groundless, and instructed DeMarco

to sign and file them. The motion sought to have Short show his authority to act on behalf of PGD

when PGD was represented by other counsel and sought sanctions against both DeMarco and Short.

AGSI responded to the motion, attempted to initiate arbitration, filed a letter to that effect in the

justice court, and sought dismissal so that the arbitration could proceed. In denying AGSI’s motion

for arbitration, the justice court stated that the settlement agreement was not valid and any arbitration

clause would be ineffective. The justice court also ordered DeMarco and Short each to pay $3,000

in sanctions “for their involvement in filing a nonsuit with prejudice of this lawsuit when they were

principal and counsel for the Defendant respectively.” AGSI filed a Petition for Writ of Mandamus

and Interlocutory Appeal with the county court, seeking mandamus relief compelling the justice



                                                   3
court to rescind the order awarding sanctions, enter an order of nonsuit, and order arbitration or, in

the alternative, seeking interlocutory appeal of the justice court’s order denying the motion to compel

arbitration. The county court denied the petition, and this appeal followed.3


                                           DISCUSSION

               As an initial matter, we address the nature of this case. Although appellants style this

case as an appeal and seek interlocutory review of the county court’s ruling on AGSI’s motion to

compel arbitration, they also challenge the county court’s denial of mandamus relief and ask us to

“mandamus the County Court at Law” and order it to vacate the orders entered by the justice court

vacating the dismissal, denying AGSI’s motion to compel arbitration, and awarding sanctions. Thus,

appellants seek interlocutory appeal and, in the alternative, mandamus relief as to the county court’s

ruling on arbitration and mandamus relief only as to the county court’s rulings on vacation of the

dismissal and sanctions. We will separately address the interlocutory appeal and the request for

mandamus relief. See CMH Homes v. Perez, 340 S.W.3d 444, 452–54 (Tex. 2011) (explaining

procedural and policy reasons why court may address both interlocutory appeal and alternative

petition for mandamus raised in same filing styled as appeal without requiring appellant to file

separate document with title “petition for writ of mandamus”); Watkins v. Jones, 192 S.W.3d 672,

673–75 (Tex. App.—Corpus Christi 2006, orig. proceeding) (where party filed joint petition for writ




       3
         Appellants also previously filed a Petition for Writ of Mandamus with this Court seeking
mandamus relief against the justices of the peace who issued the orders in the justice court. That
petition was denied for want of jurisdiction. See In re Twenty First Century Holdings, Inc.,
No. 03-13-00310-CV, 2013 Tex. App. LEXIS 6430, at *1 (Tex. App.—Austin May 24, 2013, orig.
proceeding) (mem. op.); see also Tex. Gov’t Code § 22.221 (writ power of court of appeals).

                                                  4
of mandamus and interlocutory appeal, court addressed both requests for relief, dismissing

interlocutory appeal for want of jurisdiction and denying mandamus relief); see also In re Valero

Energy Corp., 968 S.W.2d 916, 916–17 (Tex. 1998) (per curiam) (better course of action for court

of appeals when confronted with parallel interlocutory appeal and mandamus proceeding is to

consolidate and dispose of both simultaneously to conserve judicial resources).


Interlocutory Jurisdiction

               We first address our jurisdiction over the county court’s interlocutory ruling

concerning arbitration. Generally, we have jurisdiction over final judgments rendered by a county

court in a matter originating in justice court. See Tex. Gov’t Code §§ 22.220(a) (appellate court has

jurisdiction over civil cases within its district of which county court has jurisdiction), 28.052

(repealed) (final judgment in justice court may be appealed to county court in manner provided by

law for appeal from justice court to county court), 28.053(d) (repealed) (giving courts of appeal

jurisdiction to consider appeals from de novo trials in county court on claims originating in justice

court).4 Further, a denial of a motion to compel arbitration is subject to interlocutory appeal. See

Tex. Civ. Prac. & Rem. Code §§ 51.016 (in matter subject to Federal Arbitration Act, appeal may

be taken to court of appeals from interlocutory order of county court at law under same

circumstances as allowed under 9 U.S.C. section 16, which includes order denying petition to order

arbitration); 171.098 (under Texas Arbitration Act, party may appeal interlocutory order denying




       4
         Government Code sections 28.052 and 28.053 were repealed by Act of June 27, 2011,
82d Leg., 1st C.S., ch. 3, §§ 5.06, 5.09, 2011 Tex. Gen. Laws 5206, 5225, effective May 1, 2013,
which abolished justice courts.

                                                 5
arbitration in same manner and to same extent as appeal from order or judgment in civil action);

CMH Homes, 340 S.W.3d at 448–49 (explaining that legislature amended TAA, which already

allowed interlocutory appeal of order denying arbitration, to also allow interlocutory appeal of same

under FAA).5 Although the validity of the settlement agreement is in question here, “whether the

parties have entered into a binding agreement to arbitrate is one of the inquiries we undertake in an

interlocutory appeal of the denial of a motion to compel arbitration.” Weekley Homes, L.P. v. Rao,

336 S.W.3d 413, 418 (Tex. App.—Dallas 2011, pet. denied). Therefore, we conclude that we have

jurisdiction over the county court’s interlocutory order refusing to compel arbitration. See Tex. Civ.

Prac. & Rem. Code §§ 51.016, 171.098; Tex. Gov’t Code §§ 22.220(a), 28.052 (repealed), 28.053(d)

(repealed). We turn then to the merits of appellants’ first issue.


Interlocutory Appeal of Denial of Motion to Compel Arbitration

               In their first issue, appellants seek interlocutory appeal of the county court’s refusal

to compel arbitration pursuant to the settlement agreement. They contend that DeMarco had

authority to execute the settlement agreement, the arbitration provision in the settlement agreement

was therefore valid, and the county court abused its discretion in not compelling arbitration. PGD

disputes DeMarco’s authority to execute the agreement and the validity of the settlement agreement

and argues that the county court did not abuse its discretion.




       5
         Although appellants invoke the Texas Arbitration Act in their brief, see generally Tex. Civ.
Prac. & Rem. Code §§ 171.001–.098, the settlement agreement does not refer to either the TAA or
the Federal Arbitration Act, see generally 9 U.S.C. §§ 1–16.

                                                  6
Standard of Review

                We review a denial of a motion to compel arbitration for an abuse of discretion.

In re Labatt Food Serv., L.P., 279 S.W.3d 640, 642–43 (Tex. 2009); Weekley Homes, 336 S.W.3d

at 418. Under this standard we defer to the trial court’s factual determinations if they are supported

in the evidence but review the trial court’s legal determinations de novo. Rachal v. Reitz,

403 S.W.3d 840, 843 (Tex. 2013); In re Labatt Food Serv., 279 S.W.3d at 643; Weekley Homes,

336 S.W.3d at 418. “Although there is a strong presumption favoring arbitration, that presumption

arises only after the party seeking to compel arbitration proves a valid arbitration agreement exists.”

VSR Fin. Servs. v. McLendon, 409 S.W.3d 817, 827 (Tex. App.—Dallas 2013, no pet.). Whether

a valid arbitration agreement exists is a question we review de novo. Rachal, 403 S.W.3d at 843;

In re Labatt Food Serv., 279 S.W.3d at 643.

                This issue also involves matters of statutory construction, which is a question of law

that we review de novo. See Texas Mun. Power Agency v. Public Util. Comm’n of Tex., 253 S.W.3d

184, 192 (Tex. 2007); State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). Our primary concern

is the express statutory language. See Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d

863, 867 (Tex. 2009). We apply the plain meaning of the text unless a different meaning is supplied

by legislative definition or is apparent from the context, or the plain meaning leads to absurd results.

Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010).


        Analysis

                Appellants contend that DeMarco, as a manager of PGD, had authority to act on

behalf of PGD in drafting and signing the settlement agreement that included the arbitration


                                                   7
provision. They cite Business Organizations Code section 101.251, which provides that managers

of an LLC are its “governing authority,” and section 101.254, which provides that each governing

person vested with actual or apparent authority by the governing authority is an agent of company

for purposes of carrying out the company’s business. See Tex. Bus. Orgs. Code §§ 101.251, .254.

Because DeMarco was a manager of PGD, appellants argue, he had authority to sign the settlement

agreement on behalf of PGD, as well as on behalf of AGSI and himself individually, and the

arbitration provision in the settlement agreement is enforceable and binding.

               PGD argues that DeMarco’s actions are controlled by section 101.255 of the Business

Organizations Code. See id. § 101.255 (“Contracts or Transactions Involving Interested Governing

Persons”). Section 101.255 provides, in relevant part, that an otherwise valid and enforceable

contract or transaction between an LLC and a governing person or an entity in which a governing

person is a managerial official or has a financial interest “is valid and enforceable, and is not void

or voidable” if it is (1) known by or disclosed to and authorized by the “governing authority,” i.e.,

the managers, or (2) fair to the company. See id. § 101.255(a), (b)(1)(A), (b)(2). PGD contends that

DeMarco, as the sole owner of AGSI, is an “interested governing person” under section 101.255 and,

consequently, the settlement agreement between AGSI and PGD had to be (1) known by or disclosed

to and authorized by the managers, which included Denny, or (2) fair to PGD. PGD contends, and

DeMarco does not dispute, that DeMarco entered the settlement agreement without informing Denny

and that Denny did not otherwise know of the agreement. PGD also contends that on its face, the

settlement agreement is not fair to PGD because it settles PGD’s breach of contract claim for no




                                                  8
payment of money, when the prior settlement agreement had called for payment of $5,100 to PGD.

Thus, PGD argues, the settlement agreement fails to meet either condition.

               We agree with PGD that the settlement agreement, in which the arbitration provision

was embedded, did not meet either of the requirements under section 101.255. As the sole owner

of AGSI, DeMarco was a managerial official with a financial interest and thus was an “interested

governing person” under the plain language of section 101.255. See id. § 101.255(a)(2); Marks,

319 S.W.3d at 663. It is undisputed that in drafting and signing the settlement agreement, and

including an arbitration provision, DeMarco acted independently, without consulting or even

informing Denny. Thus, it is undisputed that the “managers” of PGD were not aware of the

agreement. See id. § 101.255(b)(1)(A). Further, unbeknownst to Denny, the settlement agreement

released PGD’s claims against AGSI and DeMarco in return for no consideration other than AGSI’s

release of claims against PGD, despite a prior offer of $5,100. Thus, the settlement agreement, with

the arbitration clause, cannot be construed as “fair” to PGD applying the plain meaning of the term.

See id. § 101.255(b)(2); Webster’s Third New Int’l Dictionary 815 (2002) (defining “fair” as

“characterized by honesty and justice” or “free from fraud, injustice, prejudice, or favoritism”). On

this record, we cannot conclude that the parties entered into a valid and enforceable agreement to

arbitrate. See Weekley Homes, 336 S.W.3d at 415, 421 (where promise to arbitrate in employment

agreement was illusory, arbitration agreement not enforceable). We therefore conclude that the

county court did not abuse its discretion in refusing to compel the parties to arbitrate.6 See Big Bass


       6
          In addition, there is no evidence in the record that the dispute was “first submitted to
mediation,” as required by the settlement agreement. Thus, even if we were to conclude that the
settlement agreement was fair and the arbitration clause was valid and enforceable, appellants’
attempt to enforce arbitration was premature, and we would conclude that the county court did not

                                                  9
Towing Co. v. Akin, 409 S.W.3d 835, 840–42 (Tex. App.—Dallas 2013, no pet.) (trial court did not

abuse discretion in denying motion to compel arbitration where party did not sign arbitration

agreement, had no notice of it, and did not ratify it). We overrule appellants’ first issue as to their

interlocutory appeal.


Mandamus

               In the second part of their first issue, and in their second and third issues, appellants

contend the county court abused its discretion in denying mandamus relief as to arbitration, vacation

of the dismissal, and sanctions. As we have previously observed, this request for relief is contained

in what is styled as an appeal. However, appellants expressly challenge the county court’s denial of

mandamus relief against the justice court and seek mandamus relief here under a clear abuse of

discretion standard. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)

(orig. proceeding) (one requirement relator must meet to be entitled to mandamus relief is

to show trial court’s clear abuse of discretion); cf. Walden v. Baker, No. 03-03-00253-CV,

2005 Tex. App. LEXIS 10446, at *1, *8 (Tex. App.—Austin Dec. 15, 2005, no pet.) (mem. op.)

(appeal challenged county court’s denial of writ of mandamus to justice court on grounds justice

court lacked jurisdiction and did not seek mandamus relief in court of appeals).

               Further, appellants do not appeal from a final judgment or order. The general rule

is that an appeal may be taken only from a final judgment except where an interlocutory order is

appealable by statute. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment

is final for purposes of appeal if it disposes of all pending parties and claims in the record, except


abuse its discretion in refusing to compel arbitration on this additional ground.

                                                  10
as necessary to carry out the decree. Id. Here, appellants sought mandamus against the justice

court—the trial court—from the county court—sitting as the appellate court, putting this case in a

different procedural posture from a final judgment in an original proceeding for mandamus initiated

in the trial court, which is subject to appeal. See Anderson v. City of Seven Points, 806 S.W.2d 791,

792 & n.1 (Tex. 1991) (distinguishing between appeal from final judgment in original proceeding

for writ of mandamus initiated in trial court and original proceeding for writ of mandamus filed in

appellate court, and noting that former is civil action “subject to trial and appeal on substantive law

issues and the rules of procedure as any other civil suit,” while latter is governed by appellate

rule 121, is not appealable to supreme court, but is reviewable by writ of mandamus in supreme

court); Simmons v. Kuzmich, 166 S.W.3d 342, 345–46 (Tex. App.—Fort Worth 2005, no pet.) (abuse

of discretion standard applicable to mandamus actions that originate in appellate courts not applied

in appeals of mandamus action initiated in trial court).

               The denial of mandamus relief that is sought ancillary to a pending proceeding,

as appellants sought here, is not an adjudication on the merits. See Chambers v. O’Quinn,

242 S.W.3d 30, 32 (Tex. 2007) (per curiam) (citing In re AIU Ins. Co., 148 S.W.3d 109, 119 (Tex.

2004) (noting that “failure to grant a petition for writ of mandamus is not an adjudication of, nor

even a comment on, the merits of a case in any respect, including whether mandamus relief was

available”)). Thus, the parties’ claims remain pending in justice court, and the record contains no

final order or judgment over which we have appellate jurisdiction. See id.; Lehmann, 39 S.W.3d at

195; cf. City of Fort Worth v. Abbott, 258 S.W.3d 320 (Tex. App.—Austin 2008, no pet.) (appeal

from final order in mandamus proceeding initiated in trial court); Simmons, 166 S.W.3d 342 (appeal



                                                  11
from final judgment in original proceeding for writ of mandamus initiated in trial court); see

also Senter v. Hudson, 28 S.W.3d 153 (Tex. App.—Fort Worth 2000, no pet.) (appeal from

county criminal court of appeals’ denial of post-conviction petition for writ of mandamus

compelling municipal judge to accept appeal bond); but see In re Shea, No. 01-98-01088-CV,

1998 Tex. App. LEXIS 6493, at *1–2 (Tex. App.—Houston [1st Dist.] Oct. 9, 1998, orig.

proceeding) (if county court denies petition for writ of mandamus against justice of peace, relief is

to appeal from denial) (citing Crowder v. Franks, 870 S.W.2d 568, 571 (Tex. App.—Houston [1st

Dist.] 1993, no writ) (involving appeal from final judgment)).

               Accordingly, because appellants do not appeal from a final order or judgment and

seek mandamus relief in this Court, to the extent of appellants’ request for mandamus relief, we treat

this case as a petition for writ of mandamus. See CMH Homes, 340 S.W.3d at 454 (remanding

interlocutory appeal of appointment of arbitrator to court of appeals for consideration as petition for

writ of mandamus where there was no interlocutory jurisdiction and appellant requested mandamus

relief in court of appeals and preserved issue in supreme court); Powell v. Stover, 165 S.W.3d 322,

324 n.1 (Tex. 2005) (orig. proceeding) (treating case styled as appeal as petition for writ of

mandamus where relator challenged denial of mandamus relief and did not appeal from final order);7

Westbrook v. Fondren, No. 02-09-00173-CV, 2009 Tex. App. LEXIS 7198, at *5 (Tex. App.—Fort

Worth Sept. 10, 2009, no pet.) (mem. op.) (per curiam) (where court had no statutory authority to



       7
           In Powell, the trial court denied relator’s plea in abatement and motion to dismiss for
lack of jurisdiction, and the court of appeals denied mandamus relief. See Powell v. Stover,
165 S.W.3d 322, 324 (Tex. 2005). The relator “appealed” the decision, and the supreme court
treated the case as a petition for writ of mandamus and granted writ of mandamus against the trial
court. See id. at 324 n.1, 328.

                                                  12
review trial court’s interlocutory order denying temporary restraining order, appeal dismissed for

want of jurisdiction and case considered as petition for writ of mandamus); see also Texas Comm’n

on Human Rights v. Morrison, 381 S.W.3d 533, 536–37 (Tex. 2012) (observing supreme court has

long favored common sense application of rules over technical approach that promotes form over

substance); In re Cavazos, No. 03-15-00005-CV, 2015 Tex. App. LEXIS 633, at *1 (Tex.

App.—Austin Jan. 23, 2015, orig. proceeding) (mem. op.) (looking to substance of motion rather

than title and construing “Nunc Pro Tunc Request for Order to Correct Records” as petition

for mandamus).

               Although neither party has raised the issue, we next consider our

mandamus jurisdiction over this matter sua sponte. See Bison Bldg. Materials, Ltd. v. Aldridge,

422 S.W.3d 582, 587 (Tex. 2012) (op. on reh’g). “[A] court is obliged to ascertain that subject

matter jurisdiction exists regardless of whether the parties have questioned it.” University of Tex.

Sw. Med. Ctr. At Dallas v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004), superceded on other

grounds, Act of May 25, 2005, 79th Leg. R.S., ch. 1150, § 1, 2005 Tex. Gen. Laws 3783, 3783

(codified at Tex. Gov’t Code § 311.034). Because it is a legal question, we review de novo whether

this Court has jurisdiction. University of Hous. v. Barth, 403 S.W.3d 851, 854 (Tex. 2013) (per

curiam); Weekley Homes, 336 S.W.3d at 417. If the record does not affirmatively demonstrate our

jurisdiction, we must dismiss the petition. Weekley Homes, 336 S.W.3d at 417; IFS Sec. Grp., Inc.

v. American Equity Ins. Co., 175 S.W.3d 560, 562 (Tex. App.—Dallas 2005, no pet.).

               Appellants ask this Court to “mandamus the County Court at Law” and order it to

vacate the orders entered by the justice court vacating dismissal, denying AGSI’s motion to compel



                                                13
arbitration, and awarding sanctions against DeMarco and Short. In considering appellants’ petition

for writ of mandamus, we are required to focus on the ruling of the justice court. See Powell,

165 S.W.3d at 324 (in considering relator’s petition, court focuses on trial court’s ruling). Our focus

must remain on the justice court’s orders regardless of the county court’s decision on mandamus.

See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985) (orig. proceeding) (“Our

focus remains on the trial court’s order regardless of the court of appeals’ decision on mandamus.”).

“We make an independent inquiry whether the trial court’s order is so arbitrary, unreasonable, or . . .

prejudicial . . . as to establish abuse of discretion.” Id.; see In re Lee, 411 S.W.3d 445, 461 (Tex.

2013) (orig. proceeding) (granting mandamus relief ordering trial court to withdraw orders denying

entry of judgment based on mediated settlement agreement and setting matter for trial where court

of appeals denied petition for mandamus); In re Dean, 393 S.W.3d 741, 750–51 (Tex. 2012) (orig.

proceeding) (granting writ of mandamus ordering trial court to confer with New Mexico Court of

Appeals pursuant to Family Code where court of appeals denied mandamus relief); In re United

Scaffolding, Inc., 377 S.W.3d 685, 690 (Tex. 2012) (orig. proceeding) (granting writ of mandamus

ordering trial court to vacate judgment where court of appeals denied mandamus relief). Thus, in

seeking relief from the county court’s denial of mandamus, appellants are in essence asking us to

issue mandamus against the justices of the peace who issued the challenged orders while sitting as

judge of the justice court. See Tex. Gov’t Code § 28.002, repealed by Act of June 27, 2011,

82d Leg., 1st C.S., ch. 3, § 5.06, 2011 Tex. Gen. Laws 5206, 5225 (justice of peace sits as judge of

justice court).




                                                  14
                We lack jurisdiction to issue a writ of mandamus against a justice of the peace or

justice court unless it is necessary to preserve our jurisdiction. See id. § 22.221 (writ power of court

of appeals); Mullins v. Holt, No. 10-13-00114-CV, 2013 Tex. App. LEXIS 6128, at *8 (Tex.

App.—Waco May 9, 2013, no pet.) (mem. op.) (court of appeals has no jurisdiction to issue writ of

mandamus against judge of justice court unless necessary to preserve jurisdiction); Rodriguez

v. Womack, No. 14-10-01213-CV, 2012 Tex. App. LEXIS 49, at *5 (Tex. App.—Houston [14th

Dist.] Jan. 5, 2012, pet. denied) (mem. op.) (noting court of appeals’ lack of jurisdiction to issue

mandamus against justice court). Appellants do not argue or show that a writ of mandamus is

necessary to preserve our jurisdiction. Therefore, we lack jurisdiction to issue a writ of mandamus

against the justice of the peace or justice court. See In re Smith, 355 S.W.3d 901, 901–02 (Tex.

App.—Amarillo 2011, orig. proceeding) (per curiam) (where appellants did not argue or show writ

was necessary to preserve jurisdiction, appellate court lacked jurisdiction to issue writ of mandamus

against justice of peace). Where we have no jurisdiction to issue mandamus against the justice of

the peace or justice court directly, we cannot conclude that the record affirmatively demonstrates that

we have jurisdiction to do so indirectly by way of the county court, as appellants ask us to do. See

Weekley Homes, 336 S.W.3d at 417; IFS Sec. Grp., 175 S.W.3d at 562. We therefore dismiss for




                                                  15
want of jurisdiction appellants’ request for mandamus relief as stated in issues one through three.8

See Weekley Homes, 336 S.W.3d at 417; IFS Sec. Grp., 175 S.W.3d at 562.


Frivolous Appeal

               As a final matter, PGD contends that this appeal is frivolous and asks this Court to

sanction appellants pursuant to Texas Rule of Appellate Procedure 45. See Tex. R. App. P. 45

(appellate court may award prevailing party just damages if it determines appeal is frivolous). To

determine if an appeal is frivolous, we apply an objective test, review the record from the appellant’s

point of view, and decide whether he had reasonable grounds to believe the judgment could be

reversed. Elm Creek Villas Homeowner Ass’n, Inc. v. Beldon Roofing & Remodeling Co.,

940 S.W.2d 150, 155 (Tex. App.—San Antonio 1996, no writ); Hunt v. CIT Group/Consumer Fin.,

Inc., No. 03-09-00046-CV, 2010 Tex. App. LEXIS 2767, at *27 (Tex. App.—Austin Apr. 15, 2010,

pet. denied) (mem. op.). “The decision to grant appellate sanctions is a matter of discretion that an

appellate court exercises with prudence and caution and only after careful deliberation.” Ackel

v. Ackel, No. 01-11-00061-CV, 2011 Tex. App. LEXIS 8958, at *5 (Tex. App.—Houston [1st Dist.]

Oct. 6, 2011, no pet.) (mem. op.). Having fully considered PGD’s request for sanctions, we deny

that request. See Tex. R. App. P. 45.


       8
           Even if we were to conclude we have jurisdiction, mandamus relief would not be proper.
This cause is still pending in justice court. Once the justice court has ruled, appellants may then
appeal to the county court. See Tex. Gov’t Code § 28.052, repealed by Act of June 27, 2011,
82d Leg., 1st C.S., ch. 3, § 5.06, 2011 Tex. Gen. Laws 5206, 5225. Since appeal to the county court
is trial do novo, appellants can re-urge their arguments in the county court. See id.; Tex. R. Civ.
P. 574b, repealed 2013. Therefore, appellants have an adequate remedy at law, and mandamus
relief is not proper. See Grimm v. Garner, 589 S.W.2d 955, 955, 957 (Tex. 1979); In re A.F.
No. 05-05-01435-CV, 2006 Tex. App. LEXIS 5483, at *2, *4–5 (Tex. App.—Dallas June 13, 2006,
pet. denied) (mem. op.).

                                                  16
                                          CONCLUSION

               We affirm the trial court’s order refusing to compel arbitration and dismiss the

mandamus petition for want of jurisdiction in all other respects.9



                                               _____________________________________________
                                               Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Puryear and Goodwin

Affirmed in Part; Dismissed in Part for Want of Jurisdiction

Filed: April 23, 2015




       9
          Appellants have filed a motion to abate this appeal pending this Court’s ruling on its prior
petition for writ on mandamus. We dismiss the motion as moot.

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