Opinion
05-23-01156-CV
12-21-2023
BUILDERS FIRSTSOURCE-SOUTH TEXAS, L.P., ET AL., Appellants v. DESHAWN WHITE, Appellee
On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-22-01477-B
ORDER
BONNIE LEE GOLDSTEIN JUSTICE
After reviewing the clerk's record, the Court seeks clarification of the appealed order. Appellants appeal the trial court's November 2, 2023 order denying appellants' motion to reconsider and supplemental motion to stay and compel arbitration. In a prior appeal, appellants appealed the trial court's July 8, 2022 order denying appellants' motion to compel arbitration but also granting appellee's motion for a jury trial on the issue of arbitrability. We dismissed that appeal for want of jurisdiction because it deferred ruling on the motion to arbitrate and set a jury trial to make the determination. See Builders FirstSource, Inc. v. White, No. 05-22-00724-CV, 2023 WL 2674083, at *1 (Tex. App.-Dallas Mar. 29, 2023, no pet.). It appears the newly appealed order does the same. The order recites "The Court, after examining the pleadings and evidence on file and the agreement of counsel, is of the opinion that the Motion should be granted denied." The word "denied" is in the judge's handwriting. The following language in the order is stricken:
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the Order on Defendants' Motion to Stay Litigation and Compel Arbitration, and Plaintiff's Motion for Jury Trial on Arbitrability, previously entered on July 8, 2022, is moot with the entry of this Order.
If the trial court intended to definitively deny the motion to compel arbitration, the trial court's July 8, 2022 order would indeed be moot and the above-quoted language would not have been stricken from the order. Because it appears the trial court still intends for a jury to determine whether the underlying lawsuit is subject to arbitration, we ORDER the Honorable Melissa Bellan, Presiding Judge of County Court at Law No. 2, to sign, on or before January 12, 2024, an order clarifying whether appellants' motion to compel arbitration is definitively denied or whether the issue of arbitrability will be decided by a jury.
We ORDER Dallas County Clerk John Warren to file, on or before January 17, 2024, a supplemental clerk's record containing the trial court's clarifying order.
We DIRECT the Clerk of this Court to send a copy of this order to Judge Bellan; Mr. Warren; and, all parties.
We ABATE this appeal to allow the trial court an opportunity to comply with this order. The appeal will be reinstated no later than January 22, 2024.