Ma'Kiya Congious v. Whataburger Restaurants, LLC

• Court: Court of Appeals of Texas
• Decided: June 30, 2022
• Docket: 05-21-01146-CV
• Status: Published

Opinion

DISMISS and Opinion Filed June 30, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-01146-CV

MA’KIYA CONGIOUS, Appellant V. WHATABURGER RESTAURANTS, LLC, Appellee

On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-21-10702

MEMORANDUM OPINION Before Justices Molberg, Reichek, and Garcia Opinion by Justice Reichek Appellant appeals from the trial court’s December 15, 2021 order granting

appellee’s motion to compel arbitration. Because neither the Texas Arbitration Act

nor the Federal Arbitration Act permits an appeal from an order granting a motion

to compel arbitration, see TEX. CIV. PRAC. & REM. CODE ANN. § 171.098; § 51.016;

9 U.S.C. § 16, we questioned our jurisdiction over the appeal. At the Court’s

request, the parties filed letter briefs addressing the jurisdictional issue.

In her letter brief, appellant acknowledges that orders granting a motion to

compel arbitration are not ordinarily subject to interlocutory appeal. Asserting that

a controlling question of law is involved, appellant explains that she has asked the trial court to sign an amended order granting permission to appeal the interlocutory

order. As support, appellant relies on both the state and federal statutes allowing

permissive appeals of orders that are not otherwise appealable. See TEX. CIV. PRAC.

& REM. CODE ANN. § 51.014(d); 28 U.S.C. § 1292(b). To proceed under either of

these statutes, the trial court must sign an order stating the order involves a

controlling question of law as to which there is a substantial ground for difference

of opinion and that immediate appeal form the order may materially advance the

ultimate termination of the litigation. See TEX. CIV. PRAC. & REM. CODE ANN. §

51.014(d)(1)-(2); 28 U.S.C. § 1292(b). The reviewing court must then accept the

appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(f); 28 U.S.C. § 1292(b).

Appellant asks that we “allow the appeal to proceed upon entry of [an] order

granting permission to appeal by the trial court.” As the requirements for filing a

permissive appeal are strictly construed and not satisfied in the absence of a written

order permitting the appeal, we decline appellant’s request. See id; TEX. R. APP. P.

28.3.

Because the trial court’s order is not subject to interlocutory appeal, we

dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE

211146F.P05

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MA’KIYA CONGIOUS, Appellant On Appeal from the 134th Judicial District Court, Dallas County, Texas No. 05-21-01146-CV V. Trial Court Cause No. DC-21-10702. Opinion delivered by Justice WHATABURGER Reichek. Justices Molberg and RESTAURANTS, LLC, Appellee Garcia participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee WHATABURGER RESTAURANTS, LLC recover its costs of this appeal from appellant MA’KIYA CONGIOUS.

Judgment entered June 30, 2022

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