Odette Gittins D/B/A Magic Phone v. MetroPCS Texas, LLC, Jackson Wireless, LLC, Javier Pena and Juan Castillo

• Court: Court of Appeals of Texas
• Decided: December 14, 2017
• Docket: 13-17-00619-CV
• Status: Published

Opinion

NUMBER 13-17-00619-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

ODETTE GITTINS D/B/A MAGIC PHONE, Appellant,

v.

METROPCS TEXAS, LLC, JACKSON WIRELESS, LLC, JAVIER PENA AND JUAN CASTILLO, Appellees. ____________________________________________________________

On appeal from the 92nd District Court of Hidalgo County, Texas. ____________________________________________________________

MEMORANDUM OPINION

Before Justices Rodriguez, Longoria, and Hinojosa Memorandum Opinion by Justice Rodriguez

Appellant Odette Gittins d/b/a Magic Phone has attempted to appeal an order

signed on October 4, 2017 which granted a motion to compel arbitration and to abate the

suit pending arbitration filed by MetroPCS Texas, LLC (MetroPCS). MetroPCS and

defendants Javier Pena and Juan Castillo have now filed an opposed motion to dismiss

this appeal on grounds that the order subject to review is interlocutory and this Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 42.3. More than ten days have passed

since the opposed motion to dismiss was filed and appellant has not filed a response to

the motion to dismiss. See TEX. R. APP. P. 10.3. We dismiss this appeal for lack of

jurisdiction.

Generally, appeals may be taken only from final judgments. Lehmann v. Har–

Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final if it disposes of all

pending parties and claims. Id. When an order does not dispose of all pending parties

and claims, the order remains interlocutory and unappealable until a final judgment is

rendered, unless a statute provides for interlocutory review. Bally Total Fitness Corp. v.

Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d

266, 272 (Tex. 1992) (orig. proceeding). An order compelling arbitration and staying

proceedings pending arbitration does not dispose of all claims and parties. In re Gulf

Exploration, LLC, 289 S.W.3d 836, 840–41 (Tex. 2009) (orig. proceeding).

Here, the arbitration provision at issue states that the Federal Arbitration Act (FAA)

applies to the parties’ dispute. Under the FAA, an order compelling arbitration and

granting a stay is not immediately reviewable. In re Gulf Exploration, LLC, 289 S.W.3d

at 842; see 9 U.S.C.A. § 16(b)(1),(3) (West, Westlaw through P.L. 115–84; 115–86 to

115–89) (providing that an appeal may not be taken from an interlocutory order which

grants a stay of any action or which compels arbitration); see also Chambers v. O’Quinn,

242 S.W.3d 30, 31 (Tex. 2007) (per curiam). Because such an order is not appealable

under the FAA, it is not appealable under Section 51.016 of the Texas Civil Practice and

Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.016 (West, Westlaw

through 2017 1st C.S.) (stating that in matters subject to the FAA, an appeal is available

only under the same circumstances that an appeal from a federal district court’s order

2 would be permitted). Further, even if the Texas General Arbitration Act (TGAA) were to

apply in this case rather than the FAA, an order compelling arbitration under the TGAA is

likewise not subject to immediate review. In re Gulf Exploration, LLC, 289 S.W.3d at

842; Chambers, 242 S.W.3d at 31; see TEX. CIV. PRAC. & REM .CODE ANN. §

171.098(a)(1)-(5)(West, Westlaw through 2017 1st C.S.) (allowing appeals from orders

which deny motions to compel arbitration, grant applications to stay arbitration, confirming

or denying confirmation of an arbitration award, modifying or correcting an award, and

vacating an award without directing a rehearing); see also TEX. CIV. PRAC. & REM. CODE

ANN. § 51.014(a) (West, Westlaw through 2017 1st C.S.) (providing for statutory

interlocutory appeals). However, an order compelling arbitration may be reviewed by

interlocutory appeal if the order also dismisses the underlying litigation because in such

cases the order is final rather than interlocutory. In re Gulf Exploration, LLC, 289 S.W.3d

at 840.

Here, our review of the clerk’s record reveals that no final judgment has been

entered in this case. Appellant is attempting to appeal from the trial court’s order, signed

on October 4, 2017, which granted MetroPCS’s motion to compel arbitration and to abate

the litigation, but which did not dismiss the case. Because the trial court’s order

compelling arbitration did not also dismiss the case, it is an interlocutory order for which

we lack jurisdiction, and we must dismiss this appeal. See In re Gulf Exploration, 289

S.W.3d at 840; see also Brown v. Horizon Owners Ass’n, Inc., No. 04-17-00159-CV, 2017

WL 3159442, at *1 (Tex. App.—San Antonio July 26, 2017, no pet.) (mem. op. per

curiam); Petrolia Group, LLC v. Zimmerman, Axelrad, Meyer, Stern & Wise, PC, No. 14-

16-00468-CV, 2016 WL 3743029, at *1 (Tex. App.—Houston [14th Dist.] July 12, 2016,

no pet.) (mem. op. per curiam); Whitfield v. Big Star Honda, No. 01-15-00448-CV, 2015

3 WL 7300349, at *1 (Tex. App.—Houston [1st Dist.] Nov. 19, 2015, no pet.) (mem. op. per

curiam); Tice v. El Paso Educ. Initiative, Inc., No. 08-13-00014-CV, 2013 WL 1032254,

at *1 (Tex. App.—El Paso Mar. 13, 2013, no pet.) (mem. op.).

The Court, having examined and fully considered the documents on file and the

opposed motion to dismiss filed by MetroPCS, is of the opinion that we lack jurisdiction

over this appeal. The trial court’s order compelling arbitration and abating the

proceedings pending arbitration is not reviewable by interlocutory appeal. Accordingly,

we grant the opposed motion to dismiss this appeal and we dismiss the appeal. See

TEX. R. APP. P. 42.3(a). The costs of appeal are taxed against appellant. See id. R.

42.1(d).

NELDA V. RODRIGUEZ Justice

Delivered and filed the 14th day of December, 2017.