Pearland Capital Group, LP v. Horizon United Group Intenational LLC D/B/A Horizon Group International

Opinion issued September 30, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00324-CV

———————————

PEARLAND CAPITAL GROUP, LP , Appellant

V.

HORIZON

UNITED GROUP INTERNATIONAL, LLC D/B/A HORIZON GROUP INTERNATIONAL , BRINKMANN ROOFING & SHEETMETAL

COMPANY, BRINKMANN INVESTEMENTS, INC., AND NATIONWIDE METAL BUILDINGS, LLC,

Appellees

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Case No. 2009-60160

MEMORANDUM OPINION

Appellant,

Pearland Capital Group, LP (“PCG”), brought this interlocutory appeal [1] to challenge the trial

court’s April 13, 2011 order denying its motion to sever and compel arbitration. In its sole point of error, PCG contended

that the trial court erred in denying its motion to sever and compel

arbitration of the claims brought against it by appellee, Horizon United Group

International, LLC doing business as Horizon Group International (“Horizon”), that

are “based upon the AIA construction contract between” it and Horizon or,

alternatively, in denying its and Horizon’s “respective alternative motions to

compel arbitration of all claims in dispute,” including those claims by and

against PCG, Horizon, and appellees Brinkmann Roofing

& Sheetmetal Company, Inc., Brinkmann Investments, Inc. (collectively, “Brinkmann”),

and Nationwide Metal Buildings, LLC (“Nationwide”). [2]

Background

During the pendency of this

interlocutory appeal, neither party sought temporary orders from this Court. See

Tex. R. App. P. 29.3. After both PCG and Horizon filed their

briefing in this Court, the trial court, on August 31, 2011, signed an Order

Reconsidering Court’s Prior Ruling Regarding Arbitration, in which it effectively

dissolved its original order and compelled to arbitration “those claims arising

under the Horizon/[PCG] AIA construction contract.” The trial court made additional orders

severing certain claims into a separate cause number.

Not made aware of the trial court’s

new order, this Court, on September 7, 2011, sent the parties notice that this

appeal would be set for submission on September 28, 2011. On September 13, 2011, nearly two weeks after

the trial court effectively dissolved the order being appealed and entered its

new order, PCG filed in this Court a Motion to Dismiss Appeal of Interlocutory

Order Denying Arbitration. In this

motion, PCG contended that, as a result of the trial court’s new order granting

it the relief that it had requested in its application and compelling

arbitration of certain contract claims, this Court should dismiss the

appeal. On the same day, Horizon filed

in this Court a Motion to Vacate Subsequent Order of Trial Court, arguing that

the trial court did not have jurisdiction to reconsider its April 13, 2011

order denying arbitration. Horizon asked

that we vacate the trial court’s new order and proceed to address PCG’s appeal

of the original order.

Motion to Dismiss

In its motion to dismiss, PCG argues that we must dismiss the

interlocutory appeal because the trial court entered a new order granting its

motion to compel arbitration and compelling arbitration of certain claims.

It is undisputed that we have jurisdiction over PCG’s appeal

of the trial court’s original order denying PCG’s application to compel

arbitration. See T ex. Civ. Prac. &

Rem. Code Ann. § 171.098(a)(1) (Vernon 2005) (providing that party may

appeal order denying application to compel arbitration). The parties dispute, however, whether the

trial court had jurisdiction to enter its new order and, if so, the affect of

the new order on this appeal.

Texas Rule of Appellate Procedure 29.5 provides,

While an appeal from an interlocutory order is

pending, the trial court retains jurisdiction of the case and unless prohibited

by statute may make further orders, including one dissolving the order

complained of on appeal. If permitted by

law, the trial court may proceed with a trial on the merits. But the court must not make an order that:

(a) is inconsistent with any appellate court temporary order; or

(b) interferes with or impairs the jurisdiction of the appellate

court or effectiveness of any relief sought or that may be granted on appeal.

Tex. R. App. P. 29.5. Here, the trial

court’s new order, in which it reconsidered its prior ruling and granted PCG’s

application, was clearly permitted under the rules. See id . The trial court’s new order was not

inconsistent with any temporary orders, as neither party requested such orders

during the pendency of the appeal. See id .; see also Tex. R. App. P.

29.3.

The trial court’s new order rendered the appeal of the

original order moot. See Providian

Bancorp Servs. v. Hernandez , No. 08–04–00186–CV, 2005 WL 82197 , at *1 (Tex.

App.—El Paso Jan. 13, 2005, no pet.) (mem. op.) (dismissing as moot

interlocutory appeal from order denying motion to compel arbitration after trial

court reconsidered its prior ruling and entered order compelling arbitration); Mobil Oil Corp. v. First State Bank of

Denton , No. 2-02-119-CV, 2004 WL 1699928 , at *1 (Tex. App.—Fort Worth July

29, 2004, no pet.) (dismissing as moot interlocutory appeal from class

certification order after trial court vacated order and dismissed class

action); Board of Trustees, Galveston

Wharves v. Galveston Waterfront Ventures, Inc. , No. 14-03-00265-CV, 2003 WL

21026383 , at *1 (Tex. App.—Houston [14th Dist.] May 8, 2003, no pet.) (mem.

op.) (dismissing as moot appeal of temporary injunction after trial court

entered permanent injunction); see also

Roccaforte v. Jefferson County , 341 S.W.3d 919 , 924 & n.9 (Tex. 2011)

(discussing cases “in which further proceedings mooted the issues raised” in

interlocutory appeal).

To the extent that Horizon suggests that Texas Rule of

Appellate Procedure 29.5(b) precluded the trial court from reconsidering the

order being appealed, we note that the rule expressly and specifically

authorizes a trial court to dissolve an order that is being appealed. Finally, PCG, the only party that appealed

the trial court’s original order, is now seeking dismissal of its appeal. Thus, we conclude that the trial court’s new

order has not interfered with or impaired the effectiveness of any relief

sought or that may be granted on appeal.

Accordingly,

we dismiss the appeal as moot. We also

deny Horizon’s motion to vacate the trial court’s subsequent order.

Conclusion

We dismiss the appeal as moot.

Terry Jennings

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.

[1] Tex.

Civ. Prac. & Rem. Code Ann. § 171.098(a)(1) (Vernon 2005).

[2]

Both Brinkmann and Nationwide

have elected not to file appellate briefs.