Ira Jones v. Houston Structural Inc.

• Court: Court of Appeals of Texas
• Decided: January 15, 2004
• Docket: 14-03-00990-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed January 15, 2004

Dismissed and Memorandum Opinion filed January 15, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00990-CV

IRA JONES, Appellant

V.

HOUSTON STRUCTURAL INC., Appellee

On Appeal from County Court at Law. No. 4

Harris County, Texas

Trial Court Cause No. 785,580

M E M O R A N D U M  O P I N I O N

Plaintiff Ira Jones appeals the trial court=s order compelling arbitration through the Better Business Bureau and abating the case.   He filed suit against Houston Structural Inc. and its principal Thomas Lammers after a dispute arose regarding remodeling work done at his home.  After a flurry of motions and responses to compel arbitration, Jones filed an appeal of an April 16, 2003 order, as modified by the trial court=s order of June 18, 2003, and a severance order of July 23, 2003.^[1]  Houston Structural Inc. filed a motion to dismiss the appeal for want of jurisdiction.

 Within well‑defined exceptions, we review by appeal only final judgments that dispose of all parties and issues.  See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 & n. 12 (Tex. 2001).  A right to appeal arises only from a final order or an interlocutory order made appealable by statute.  Tex. Civ. Prac. & Rem.Code Ann. '51.014 (Vernon Supp. 2003) (describing appealable interlocutory orders in civil cases); see Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352 (Tex. 2001);  In re MHI P=ship, Ltd., 7 S.W.3d 918, 920 (Tex. AppB Houston [1st Dist.] 1999, orig. proceeding).  Because orders compelling arbitration do not dispose of all parties and issues, but instead contemplate continuing resolution through the arbitration process, orders compelling arbitration are interlocutory per se.  Brook v. Pep Boys Auto. Superctrs, Inc., 104 S.W.3d 656 (Tex. App.CHouston [1st Dist.] 2003, no pet.).   The order challenged here grants a stay of the litigation and compels arbitration, and is, therefore, interlocutory.^[2]   As a result, we have no jurisdiction to address this appeal and must dismiss it.  See Trico Marine Servs, Inc. v. Stewart & Stevenson Technical Servs., 73 S.W.3d 545, 547-48 (Tex. App.CHouston [1st Dist.] 2002, orig. proceeding).

 Houston Structural also moves for Jones to reimburse its appellate costs, arguing that Jones=s appeal of an interlocutory order in this case was frivolous and brought for purposes of delay only, further postponing the arbitration of this case.  Under Texas Rule of Appellate Procedure 45, we are authorized to award a prevailing party Ajust damages@ if we determine an appeal is frivolous.   Tex. R. App. P. 45;  Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.CHouston [1st Dist.] 2001, pet. denied).  Whether to grant sanctions is a matter of discretion that we exercise with prudence and caution and only after careful deliberation and in truly egregious circumstances.   Angelou v. African Overseas Union, 33 S.W.3d 269, 282 (Tex. App.CHouston [14th Dist.]  2000, no pet.).  We have not been presented with facts that warrant an award of just damages; therefore, we deny the motion to award costs for a frivolous appeal.

Accordingly, we grant Houston Structural=s motion to dismiss the appeal for want of jurisdiction and dismiss Jones=s appellate challenge to the trial court=s order compelling arbitration and a stay.  See Tex. R. App. P. 42.3.

PER CURIAM

Order filed January 15, 2004.

Panel consists of Justices Edelman, Frost, and Guzman.

Do Not Publish C Tex. R. App. P. 47.3(b).

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^[1]   The April 16, 2003 order compelled arbitration against both defendants.  The June 18, 2003 order on reconsideration found that Defendant Lammers is not subject to arbitration, and severed the claims against him  into a separate, new cause number.  The July 23, 2003 order instructed the clerk to create the new case=s lawsuit=s file and execute the severance.

^[2]    Whether under the Texas Arbitration Act or the Federal Arbitration Act or common law arbitration, there is no interlocutory appeal over an order granting a motion to compel arbitration.  Compare  Mohamed v. Auto Nation USA Corp., 89 S.W.3d 830, 835 (Tex. App.CHouston [1st Dist.] 2002, orig. proceeding) (TAA) with  Stewart Title Guar. Co. v. Mack, 945 S.W.2d 330, 332 (Tex. App.CHouston [1st Dist.] 1997, writ dism=d w.o.j.) (common law arbitration) and with In re Am. Homestar, Inc., 50 S.W.3d 480, 483 (Tex. 2001) (FAA).