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Click here for the full text of this decision FACTS:RLS Legal Solutions LLC., and Yandell Rogers III (RLS/Rogers) filed a petition for writ of mandamus (No. 09-03-469-CV) and an interlocutory appeal (No. 09-03-453-CV), both of which arise from an order entered by the 172nd District Court. In an order signed September 5, 2003, Judge Floyd denied RLS/Rogers’ motion to compel arbitration. As both sides agree the Texas Arbitration Act does not apply to the instant cause, the interlocutory appeal (No. 09-03-453) is dismissed for want of jurisdiction. The trial court did not reveal its reasoning for denying the motion to compel arbitration. HOLDING:Conditionally granted. The court is not persuaded the trial court erred in refusing to compel arbitration under the prior agreements. RLS/Rogers claims the trial court erred in not conducting an evidentiary hearing. The Texas Supreme Court has held that “if the material facts necessary to determine the issue are controverted, by an opposing affidavit or otherwise admissible evidence, the trial court must conduct an evidentiary hearing to determine the disputed material facts.” Jack B. Anglin Co. Inc. v. Tipps, 842 S.W.2d 266 (Tex. 1992). RLS/Rogers asserts it disputed material facts with the affidavit of Richard Saldivar. The trial court struck Saldivar’s affidavit stating: “the Movants set this hearing on their Motion to Compel Arbitration on September 2, 2003, without any controverting affidavits on file, and the controverting Affidavit of Richard Saldivar, which was first filed in this case on September 5, 2003, at 1:08 p.m., some 22 minutes before the start of the hearing set by the Movants, is hereby STRUCK from the record and is not to be considered by this Court. . ..” RLS/Rogers argues the trial court erred in striking the affidavit. The opposing real party (Maida) concedes “the time period for filing controverting evidence is not fixed. . . .” and cites no authority permitting the trial court’s action. Rather, Maida contends RLS/Rogers waived its right to an evidentiary hearing and to complain of the affidavit being stricken by failing to request a continuance and by proceeding with the scheduled hearing. The court knows no authority, and neither party cites any, governing this issue. In Jack B. Anglin Co., the Texas Supreme Court decided that “the trial court must conduct an evidentiary hearing.” Clearly, the trial court could have reset the hearing to allow opposing counsel to prepare for the evidentiary hearing which RLS/Rogers sprang on them. Nevertheless, in the absence of any requirements that the controverting evidence must be timely filed, the court finds the trial court erred in striking Saldivar’s affidavit and in failing to conduct an evidentiary hearing. RLS/Rogers also argues the trial court abused its discretion in overruling its objections to Maida’s affidavit. RLS/Rogers fails to provide any references to the record wherein this objection was presented to the trial court. RLS/Rogers further fails to cite to the record where the trial court ruled upon its objection. RLS/Rogers’ proposes the trial court overruled its objection by implication in denying the motion to compel arbitration and in striking Saldivar’s affidavit but provides no reasoning or authority for such a presumption. The response filed Sept. 5, right before the hearing, contains a single hearsay objection to various statements in Maida’s affidavit. RLS/Rogers provides no authority these statements are hearsay. Accordingly, nothing is presented for review. OPINION:Burgess, J.; McKeithen, C.J., Burgess and Gaultney, JJ.

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