Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

Once upon a time, if there was doubt about whether an arbitration agreement was subject to the Federal Arbitration Act (FAA), a party complaining of a denial of a motion to compel arbitration had to file (1) an interlocutory appeal AND (2) a petition for writ of mandamus, then seek to consolidate the two separate proceedings.  The separate mandamus is not required since September of 2009, when Texas Civil Practice and Remedies Code Section 51.016 went into effect and allowed for an interlocutory appeal of agreements subject to the FAA.  (why this statute was not located with the other interlocutory appeal provisions is a mystery to me).

The El Paso Court of Appeals points out the implications of the adoption of Section 51.016 on mandamus practice in In re H.D. Vest Inc.  In short, the court denied a petition for writ of mandamus because the court concluded that the Relators have an adequate remedy by appeal under Section 51.016.  The court's opinion may be found here.

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A party seeking summary judgment must raise all its grounds in the motion itself; raising a ground for summary judgment at the summary judgment hearing will not support the summary judgment if the judgment is attacked on appeal.

In Ritchey v. Pinnell, Brenda Ritchey brought suit against Steven and Amy Pinnell after Ritchey purchased a home from the Pinnells and learned that she could not get a certificate of occupancy because many of the home improvements made by the Pinnells did not meet code requirements.  Ritchey asserted claims for breach of contract and real estate fraud.  The contract for purchase contained an "as is" clause. 

The Pinnells sought summary judgment against Ritchey's claims.  With respect to the fraud claim, the motion asserted that there was no evidence Steve Pinnell knew the alleged misrepresentations were false and there was no evidence the misrepresentations induced the sale.  As to the breach-of-contract claim, the Pinnells argued that the "as is" clause defeated the claim.  At the summary judgment hearing, the argument arose that the "as is" clause defeated causation as to the fraud claim.  The trial court granted the Pinnells' motion on all claims and Ritchey appealed. 

On appeal, the Texarkana Court of Appeals holds that the "as is" clause cannot be used to support the summary judgment on the fraud claim since that ground was not raised in the motion for summary judgment.  The court otherwise holds that statutory fraud does not require that the declarant know that the misrepresentation was false and that there was some evidence the false representation induced the sale.  Thus, the court reversed the summary judgmetn on the fraud claim.  However, the court held that the "as is" clause defeated the breach of contract claim and the court affirmed the summary judgment on that claim.  The court's opinion may be found at this link.

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