MONY Securities Corp. v. Padilla

132 S.W.3d 201, 2004 Tex. App. LEXIS 2957, 2004 WL 690843

• Court: Court of Appeals of Texas
• Decided: April 1, 2004
• Docket: 13-02-711-CV
• Status: Published

Opinions

OPINION

Opinion by Justice YÁÑEZ.

Appellants (collectively, “MONY”)¹ bring this accelerated appeal from an interlocutory order denying their motion to compel arbitration. We dismiss the appeal for want of jurisdiction.

Jurisdiction

We must first address whether we have jurisdiction to consider this interlocutory appeal. An order denying a motion to compel arbitration is interlocutory. Interlocutory orders may be appealed only if permitted by statute. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992) (orig. proceeding). Section 171.017 of the civil practice and remedies code permits an interlocutory appeal from an order denying an application to compel arbitration under the Texas Arbitration Act (“TAA”). See Tex. Civ. PRAC. & Rem. Code Ann. §§ 171.017(a)(1), 171.098(a)(1) (Vernon 1997 & Supp.2004).

A party may not, however, appeal the denial of a motion to compel under the Federal Arbitration Act (“FAA”). See Anglin, 842 S.W.2d at 272; Phillips v. ACS Mun. Brokers, Inc., 888 S.W.2d 872, 874 (Tex.App.-Dallas 1994, no writ) (“Texas courts have no jurisdiction to review an interlocutory order denying arbitration under the Federal Act.”); D. Wilson Constr. Co. v. McAllen Indep. Sch. Dist., 848 S.W.2d 226, 228 (Tex.App.-Corpus Christi 1992, writ dism’d w.o.j.) (same). Mandamus, not interlocutory appeal, is the proper means for reviewing an order denying arbitration under the FAA.² In re Valero Energy Corp., 968 S.W.2d 916, 916 (Tex.1998) (citing Anglin, 842 S.W.2d at 271-72); In re MONY Secs. Corp. v. Durham, 83 S.W.3d 279, 282 (Tex.App.-Corpus Christi 2002, no pet.) (combined appeal and orig. proceeding); Pennzoil v. Arnold Oil Co., 30 S.W.3d 494, 497 (Tex.App.-San Antonio 2000, orig. proceeding).

As we noted in In re MONY:

The FAA governs an arbitration agreement contained in “a contract evidencing a transaction involving commerce....” 9 U.S.C. § 2 (2000). This statute has been interpreted as being coextensive with the reach of the Commerce Clause of the United States Constitution. Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 272-81 [115 S.Ct. 834, 130 L.Ed.2d 753] (1995); In re L & L Kempwood Assocs., 9 S.W.3d 125, 127 (Tex.1999) (per curiam). A contract “evidences a transaction involving commerce” if it involves interstate commerce. Allied-Bruce, 513 U.S. at 277-81 [115 S.Ct. 834].

In re MONY, 83 S.W.3d at 282.³

The arbitration provision at issue in the instant case is contained in MONY’s New Account Form. This Court has previously held that the arbitration provision contained in MONY’s New Account Form evidences a “transaction involving commerce” and is subject to the FAA. See id. at 282-83. Moreover, at the hearing on MONY’s motion to compel arbitration, MONY’s counsel noted that it is undisputed that the

arbitration provision at issue is governed by the FAA.

In her dissent, Justice Castillo asserts that this Court’s “refusal to grant mandamus relief under the FAA does not preclude exercise of our jurisdiction to review and consider this interlocutory appeal under the TGAA.” In support, the dissent cites J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 n. 1 (2003), and suggests that review under the TGAA may be appropriate when a party seeking to compel arbitration fails to file a parallel mandamus proceeding under the FAA. In Davidson, however, the party seeking to compel arbitration did not dispute that the TGAA governed the provision at issue. See id. In the present case, the parties do not dispute that the arbitration provision is governed by the FAA. Davidson offers no support for the dissent’s assertion that we may review this appeal under the TGAA.⁴

We hold that we have no jurisdiction to consider this interlocutory appeal. Accordingly, we DISMISS the appeal for want of jurisdiction. See In re MONY, 83 S.W.3d at 283; Pennzoil, 30 S.W.3d at 498.

Dissenting Opinion by Justice CASTILLO.

1 . Appellants are MONY Securities Corp., RKPE, Inc., the MONY Group, Inc., MONY Benefits Management Corp., MONY Assets Corp., MONY Brokerage, Inc., MONY International Agency, Inc., MONY Realty Partners, Inc., 1740 Ventures, Inc., and The MONY Fund, Inc. (collectively, "MONY").

2 . In a parallel proceeding, 13-02-712-CV, styled In re Mony Securities Corp., et al., MONY previously filed a petition for writ of mandamus in this Court seeking review of the denial of its motion to compel arbitration under the Federal Arbitration Act. In a per curiam order, a panel of this Court consisting of Justices Yáñez, Castillo, and Garza denied the petition without opinion on January 9, 2003. See Tex.R.App. P. 52.8(d) (when denying relief, court may hand down opinion but is not required to do so).

3 . We note that In re MONY Secs. Corp. v. Durham, 83 S.W.3d 279, 282 (Tex.App.-Corpus Christi 2002, no pet.) (combined appeal and orig. proceeding), is not the parallel proceeding in the instant case.

4 . In a recent opinion concurring in part and dissenting in part to the supreme court’s denial of petitions for writ of mandamus in several medical malpractice cases, Justice Owen noted that mandamus relief is necessary in arbitration cases under the FAA to "fill th[e] gap in appellate jurisdiction" caused by the absence of relief by interlocutory appeal in such cases. See In re Woman’s Hosp. of Tex., Inc., — S.W.3d -, -, No. 02-0748, 47 Tex. Sup.Ct. J. 346, 2004 WL 422583, *3 (Tex. March 5, 2004) (concurring in part and dissenting in part to denial of petitions for writ of mandamus). If appellate courts were free, as Justice Castillo suggests, to simply review arbitration disputes governed by the FAA by interlocutory appeal under the TGAA, it would be unnecessary to rely on mandamus relief “to fill th[e] gap in appellate jurisdiction." See id.