Wm. B. Emmons & Mary Chris Emmons v. Marriott Resports Hospitality Corporation D/B/A Marriott Vacation Club International, Marriott International, Inc.

• Court: Court of Appeals of Texas
• Decided: December 21, 2006
• Docket: 14-06-01018-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed December 21, 2006

Dismissed and Memorandum Opinion filed December 21, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-01018-CV

WM. B. EMMONS and MARY CRIS EMMONS, Appellants

V.

MARRIOTT RESORTS HOSPITALITY CORPORATION

d/b/a MARRIOTT VACATION CLUB INTERNATIONAL, and

MARRIOTT INTERNATIONAL, INC., Appellees

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2006-45584

M E M O R A N D U M  O P I N I O N

This is an attempted appeal from an interlocutory order compelling arbitration signed October 16, 2006.  Appellants= notice of appeal was due November 16, 2006, but was filed November 13, 2006.  See Tex. R. App. P. 26.1(b), 28.1.  The clerk=s record was filed on November 16, 2006.  On November 17, 2006, appellants filed a motion for extension of time to file their notice of appeal.  See Tex. R. App. P. 26.3. 

Generally, appeals may be taken only from final judgments.  Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).  Interlocutory orders may be appealed only if permitted by statute.  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). 

Orders compelling arbitration are interlocutory.  Brook v. Pep Boys Auto. Superctrs., Inc., 104 S.W.3d 656, 660 (Tex. App.CHouston [1st Dist.] 2003, no pet.).  Moreover, the trial court stayed the underlying case pending arbitration, making its order interlocutory.  Cf. Childers v. Advanced Found. Repair, L.P., 193 S.W.3d 897, 898 (Tex. 2006) (holding order compelling arbitration was final where court dismissed the case Ain its entirety@). 

The Texas Arbitration Act provides for appeals from interlocutory orders denying motions to compel arbitration or granting stays of arbitration.  Tex. Civ. Prac. & Rem. Code Ann. ' 171.098(a) (Vernon 2005) (emphasis added).  A petition for writ of mandamus, not an interlocutory appeal, is the proper forum in which to challenge an order granting a motion to compel arbitration.^[1]  Bates v. MTH Homes-Texas, L.P., 177 S.W.3d 419, 421 (Tex. App.CHouston [1st Dist.] 2002, no pet.).

On November 20, 2006, notification was transmitted to the parties of this court=s intention to dismiss the appeal for want of jurisdiction unless appellants filed a response  on or before December 8, 2006, demonstrating grounds for continuing the appeal.  See Tex. R. App. P. 42.3(a).  Appellants filed no response to our notice.

Accordingly, the appeal is ordered dismissed.  Appellants= motion for extension of time to file their notice of appeal is denied as moot.

PER CURIAM

Judgment rendered and Memorandum Opinion filed December 21, 2006.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

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^[1]  On November 30, 2006, appellants filed a petition for writ of mandamus, which was docketed under our case number 14-06-01063-CV.  The petition remains pending before the court.