Sarita Garg, Smith & Garg, LLC and Garg & Associates, PC v. Tuan M. Pham

Order filed February 3, 2015.

In The

Fourteenth Court of Appeals
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NO. 14-14-00787-CV
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SARITA GARG, SMITH & GARG, LLC AND GARG & ASSOCIATES, PC,
Appellants

V.

TUAN M. PHAM, Appellee

On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2008-43381

ORDER

On September 30, 2014, appellants filed a notice of accelerated appeal from
an interlocutory order signed August 25, 2014, denying their motion to compel
arbitration. Because appellants’ notice of appeal was filed after the twenty-day
deadline to perfect an appeal, but within the fifteen-day period for an extension of
time, this court ordered appellants to file an appropriate motion for extension of
time to file the notice of appeal. See Tex. R. App. P. 26.3; see also Miller v.
Greenpark Surgery Ctr. Assocs., Ltd., 974 S.W.2d 805, 808 (Tex. App.—Houston
[14th Dist.] 1998, no pet.). When the motion for extension of time was not filed as
ordered, appellee filed a motion, and amended motions, to dismiss the appeal for
want of jurisdiction. See Tex. R. App. P. 42.3(a). In addition to the assertion that
the notice of appeal was filed late, appellee argued that because the order was
issued pursuant to the Federal Arbitration Act (“FAA”), it is not subject to
interlocutory appeal. We disagree. In 2009, the legislature amended the Texas
Arbitration Act to permit interlocutory appeals of orders denying motions to
compel arbitration pursuant to the FAA. See Tex. Civ. Prac. & Rem. Code §
51.016 (West, Westlaw through 2013 3d C.S.); see also CMH Homes v. Perez, 340
S.W.3d 444, 448 (Tex. 2011) (construing section 51.016). If a matter is subject to
the FAA, section 51.016 of the Texas Civil Practice and Remedies Code authorizes
interlocutory appeals “to the court of appeals from the judgment or interlocutory
order of a district court . . . under the same circumstances that an appeal from a
federal district court’s order or decision would be permitted by 9 U.S.C. Section
16.” Tex. Civ. Prac. & Rem. Code § 51.016.

In response to a further order from this court, on January 13, 2015,
appellants notified this court that their motion for extension of time to file the
notice of appeal was e-filed at the Court of Appeals for the First District of Texas
with appellants’ notice of appeal. Appellants requested that the motion be filed in
this court. We granted appellants’ request and have filed the motion in this court.
Appellants also requested sanctions against appellee, asserting that appellee was
aware that the motion for extension of time had been filed. We note that in the
documents included with appellants’ motion is a copy of the confirmation that the
motion for extension of time had been e-filed, and the notice expressly advised
appellants to “file a copy of your motion again with the Court that was assigned

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your case . . . .” In addition, appellants failed to respond either to this court’s
October 21, 2014 order to file an extension or to this court’s notice on November
6, 2014, that no extension motion had been received. We DENY appellants’
motion for sanctions.

Appellants have provided a reasonable explanation for the late filing of their
notice of appeal. Therefore, we GRANT appellants’ motion for extension of time
to file their notice of appeal. On the grounds alleged in appellee’s motion to
dismiss the appeal for want of jurisdiction, as amended, the motion is DENIED.

However, there remains another basis to question this court’s jurisdiction.
The trial court first denied appellants’ motion to compel arbitration on August 1,
2014. Appellants then filed a motion to reconsider the denial, asserting that
counsel’s failure to appear at the August 1, 2014 hearing was inadvertent. In
addition, appellants asserted that appellee’s response was not filed until the day of
the hearing. On August 18, 2014, the trial court signed an order granting
reconsideration and advised the parties that on August 25, 2014, the trial court
would hear the motion to compel arbitration by submission. On August 25, 2014,
appellants filed objections to appellee’s evidence. That day, the trial court signed
an order denying appellants’ motion to compel arbitration.

Some Texas courts of appeals have determined that they lack jurisdiction
over an appeal from an order denying a motion to reconsider the denial of a motion
to compel arbitration. See, e.g., Nazareth Hall Nursing Ctr. v. Castro, 374 S.W.3d
590, 594 (Tex. App.—El Paso 2012, no pet.) (dismissing where appellant failed to
perfect its appeal within the requisite time from the order denying its motion to
compel arbitration and instead appealed the motion to reconsider, which is not an
appealable order under Section 16 of the FAA and Section 51.016). In Nabors Well
Services Co. v. Aviles, the appellate court agreed with the trial court’s

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characterization of an amended motion to compel arbitration as a motion for
reconsideration, and dismissed the appeal for want of jurisdiction. No. 06-10-
00018-CV, 2010 WL 2680087, at *1–*2 (Tex. App.—Texarkana July 7, 2010, no
pet.) (mem. op.); see also Hydro Mgmt. Sys., LLC v. Jalin, Ltd., No. 04–09–
00813–CV, 2010 WL 1817813 (Tex. App.—San Antonio May 5, 2010, no pet.)
(mem. op.) (holding that because the later order denying arbitration did nothing to
modify the first order, the motion for reconsideration did not extend the time for
perfecting an appeal of the trial court’s interlocutory order, and the notice of appeal
was untimely filed).

The parties are requested to address the following issues in their appellate
briefs:

1. Does this court have jurisdiction over this interlocutory appeal?
2. Is the second order denying arbitration an order on a motion to
reconsider or rehear the motion to compel arbitration?
3. Did the time to perfect an accelerated appeal from the denial of
arbitration begin on August 1, 2014, or August 25, 2014?
4. Does the motion for reconsideration extend the time to perfect the
appeal?
5. Did the trial court set aside the first order denying the motion to
compel arbitration when it granted appellants’ motion for
reconsideration?
6. Do the authorities cited above apply to this case, or may they be
distinguished?

The deadline for filing appellants’ brief is extended to twenty days after the
date of this order, and appellee’s brief shall be due twenty days after appellants’
brief is filed.

PER CURIAM

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Panel consists of Chief Justice Frost and Justices Boyce and McCally.

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