Ronald Dwayne Whitfield v. Clear Lake Nissan and Santander Consumer USA

Opinion

Opinion issued November 19, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-00645-CV ——————————— PROPHET RONALD DWAYNE WHITFIELD, Appellant V. CLEAR LAKE NISSAN AND SANTANDER CONSUMER USA, INC., Appellees

On Appeal from the 333rd District Court Harris County, Texas Trial Court Case No. 2015-22666

MEMORANDUM OPINION

Appellant, Prophet Ronald Dwayne Whitfield, proceeding pro se, attempts

to appeal from an interlocutory order of the trial court, signed on July 24, 2015,

granting the motion to compel arbitration and for stay of case filed by appellees

Clear Lake Nissan and Santander Consumer USA, Inc. Appellant has filed several motions, including one seeking a free record and referring to his related mandamus

petitions.1 We dismiss the appeal for want of jurisdiction.

Generally, this Court has civil appellate jurisdiction over final judgments or

interlocutory orders specifically authorized as appealable by statute. See TEX. CIV.

PRAC. & REM. CODE ANN. §§ 51.012, 51.014(a)(1)–(12) (West Supp. 2014); Bison

Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585 (Tex. 2012); Lehmann v.

Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Stary v. DeBord, 967 S.W.2d

352, 352–53 (Tex. 1998). After a 2009 amendment, the Texas “Civil Practice and

Remedies Code provides for immediate, interlocutory review of the denial of a

motion to compel arbitration under the [Federal Arbitration Act] FAA . . . .” In re

Santander Consumer USA, Inc., 445 S.W.3d 216, 217 (Tex. App.—Houston [1st

Dist.] 2013, orig. proceeding) (emphasis added) (citing, inter alia, TEX. CIV. PRAC.

& REM. CODE ANN. § 51.016 (West Supp. 2011) and 9 U.S.C. § 16(a)(1)(C)

(2006)); see also TEX. CIV. PRAC. & REM. CODE ANN. § 171.098(a)(1) (West Supp.

2014).

However, “[w]hether under the Texas Arbitration Act or the Federal

Arbitration Act, there is no interlocutory appeal over an order granting a motion to

1 On September 1, 2015, we dismissed appellant’s pro se mandamus petition challenging this same trial court order, and a similar order in a related case. See In re Prophet Ronald Dwayne Whitfield, No. 01-15-00657-CV, No. 01-15-00658- CV, 2015 WL 5136805, at *1 (Tex. App.—Houston [1st Dist.] Sept. 1, 2015, orig. proceeding) (mem. op.). 2 compel arbitration. As a result, we have no jurisdiction over this appeal and must

dismiss it.” Bashaw v. Republic State Mortgage Co., No. 01-14-00427-CV, 2014

WL 4374121, at *1 (Tex. App.—Houston [1st Dist.] Sept. 4, 2014, no pet.) (mem.

op.) (emphasis added) (internal quotation marks and citations omitted). The Texas

Supreme Court has noted an exception to the no-interlocutory-review rule over

orders compelling arbitration in which “[c]ourts may review an order compelling

arbitration if the order also dismisses the underlying litigation so it is final rather

than interlocutory.” In re Gulf Exploration, LLC, 289 S.W.3d 836, 840 (Tex.

2009) (orig. proceeding) (emphasis added). “Both federal and Texas statutes

provide for vacating an arbitration award by final appeal if the arbitrators exceeded

their powers.” Id. at 842 (emphasis added).

Here, the notice of appeal and supplemental clerk’s record on indigence

reveal that no final judgment has been entered in this case. Appellant is attempting

to appeal from the trial court’s order, signed on July 24, 2015, which granted the

appellees’ motion to compel arbitration and for stay of case in this breach-of-

contract suit, 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. Cf. In re Gulf

Exploration, 289 S.W.3d at 840; see Bashaw, 2014 WL 4374121, at *1.

3 On September 18, 2015, the Clerk of this Court notified appellant that he

needed to file a response showing grounds for this Court’s jurisdiction over this

appeal within ten days of that notice, or else the appeal would be dismissed for

want of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f). Appellant timely filed a

response, but he failed to show grounds for this Court’s jurisdiction over this

interlocutory appeal. Instead, appellant acknowledged that Texas law does not

authorize mandamus review of such orders compelling arbitration and seeks

interlocutory review. However, as noted above, appellant can seek to vacate any

arbitration award on final appeal if the arbitrator exceeded its powers. See In re

Gulf Exploration, 289 S.W.3d at 842.

CONCLUSION Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R.

APP. P. 42.3(a), 43.2(f). We dismiss all pending motions as moot.

Panel consists of Justices Jennings, Keyes, and Bland.