in Re Dennis Weitzel

• Court: Court of Appeals of Texas
• Decided: January 29, 2019
• Docket: 01-19-00006-CV
• Status: Published

Opinion

Opinion issued January 29, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00006-CV ——————————— IN RE DENNIS WEITZEL, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator Dennis Weitzel has filed a “Notice of Accelerated Appeal of Order

Denying Motion to Compel Arbitration and Petition for Writ of Mandamus.” 1 We

deny the petition.

1 The underlying case is Michael T. Gallagher and The Gallagher Law Firm, PLLC v. Brent Coon, Individually and Brent W. Coon, P.C. d/b/a Brent Coon and Associates, cause number 2018-52828, pending in the 164th District Court of Harris County, Texas, the Honorable Alexandra Smoots-Hogan presiding. Weitzel has filed both a notice of appeal from the challenged order and a

petition for writ of mandamus. Weitzel does not state that he has filed his notice of

accelerated appeal in the trial court and we are unable to determine whether he has

done so. When a party mistakenly files a notice of appeal in an appellate court, “the

notice is deemed to have been filed the same day with the trial court clerk, and the

appellate clerk must immediately send the trial court clerk a copy of the notice.”

TEX. R. APP. P. 25.1(a). Accordingly, we have forwarded the notice of accelerated

appeal to the trial court clerk.

To be entitled to mandamus relief, a petitioner must show both that the trial

court abused its discretion and that there is no adequate remedy by appeal. In re

Prudential Ins. Co., 148 S.W.3d 124, 135– (Tex. 2004). The order Weitzel

challenges is appealable. See TEX. CIV. PRAC. & REM. CODE § 171.098 (providing

for appeal of order denying application to compel arbitration), § 51.016 (providing

for appeal of interlocutory order denying motion to compel arbitration). Because

Weitzel has an adequate remedy by appeal, he is not entitled to mandamus relief.

See In re Santander Consumer USA, Inc., 445 S.W.3d 216, 218–19 (Tex. App.—

Houston [1st Dist.] 2013, orig. proceeding) (observing that interlocutory orders

denying motion to compel arbitration are appealable both under the Texas

Arbitration Act and Texas Civil Practices and Remedies Code Section 51.016, and

2 therefore, relator was not entitled to mandamus relief because it had adequate

remedy by accelerated appeal).

We deny the petition for writ of mandamus. TEX. R. APP. P. 52.8(a). Any

pending motions are dismissed as moot.

PER CURIAM

Panel consists of Justices Lloyd, Kelly, and Hightower.