Albert Ortiz v. the Junell Law Firm, Sanders & Junell, P.C., Mark Junell, Individually and Bergman ADR Group

Motion Granted, Appeal Dismissed and Memorandum Opinion filed November 15,
2011.

In The

Fourteenth Court of Appeals
____________

NO. 14-11-00805-CV
____________

ALBERT ORTIZ, Appellant

V.

THE JUNELL LAW FIRM, SANDERS & JUNELL, P.C., MARK JUNELL,
Individually, and BERGMAN ADR GROUP, Appellees

On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 2011-24922

MEMORANDUM OPINION

This is an attempted appeal from an order compelling arbitration signed July 27,
2011. Appellant filed a notice of appeal on September 12, 2011. Appellant also filed a
motion for extension of time to file his 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). An order is final and appealable only if it actually
disposes of every pending claim and party or it clearly and unequivocally states that it
finally disposes of all claims and parties. Id. at 205. 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).

In this case, the order that appellant seeks to appeal grants the defendants’ motion to
compel arbitration. In addition, the order recites that “this action is stayed pending
completion of the arbitration proceeding.” The Texas Arbitration Act requires an order
compelling arbitration to include a stay of the underlying litigation. See Tex. Civ. Prac. &
Rem. Code § 171.021(c). During arbitration, a court order may be needed to replace an
arbitrator, compel attendance of witnesses, or direct arbitrators to proceed promptly; after
arbitration, a court order is needed to confirm, modify, or vacate the arbitration award. In
re Gulf Exploration, LLC, 289 S.W.3d 836, 841 (Tex. 2009). Therefore, the trial court
does not dispose of all claims and all parties until after arbitration is completed. Id.

When an order compelling arbitration stays the underlying case, there can be no
immediate appeal of the order.1 See Green Tree Fin. Corp. v. Randolph, 531 U.S. 79,
86-87, n.2, 1212 S.Ct. 513, 520 (2000). In Texas, an immediate appeal is available from
orders denying arbitration. Chambers v. O’Quinn, 242 S.W.3d 30, 31 (Tex. 2007) (per
curiam); see also Tex. Civ. Prac. & Rem. Code § 51.016. An order compelling arbitration
will be immediately reviewable if the judgment states that it is “final, disposes of all parties
and all claims in this case, is appealable, and disposes of this case in the entirety.”
Childers v. Advanced Foundation Repair, 193 S.W.3d 897, 898 (Tex. 2006). Here, the
trial court’s order contains no such finality language and expressly states that the
underlying case is stayed.

On October 11, 2011, notification was transmitted to the parties of this court’s
intention to dismiss the appeal for want of jurisdiction unless appellant filed a response

1
An order compelling arbitration may be reviewed in an appeal from the final judgment. See Perry
Homes v. Cull, 258 S.W.3d 580, 586 & n.9 (2008).

2
demonstrating grounds for continuing the appeal on or before October 25, 2011. See Tex.
R. App. P. 42.3(a). Appellant argues that the only relief he sought in the underlying suit
was to enjoin the arbitration; therefore, the order compelling arbitration resolved the entire
case. He contends that even a stay order will be considered final if the action is effectively
over, citing Gulf Exploration. The Texas Supreme Court actually distinguished federal
practice from that in state court in writing that “[a]rbitrability is often the only issue in
federal court because nondiverse parties may prevent removal of the underlying case from
state court; in such cases, even a stay order will be considered final if the federal action is
effectively over.” See Gulf Exploration, 289 S.W.3d at 840 (footnotes omitted).
Appellant’s response fails to demonstrate that this court has jurisdiction over the appeal.

Appellees have also filed a response to this court’s notice, and they included a
motion to dismiss the appeal because the order being appealed is interlocutory. See Tex.
R. App. P. 42.3(a). Appellees argue that the underlying case was stayed pending
arbitration; therefore, the order is interlocutory and not subject to an immediate appeal.
Appellees also assert that appellant has raised a number of affirmative claims for relief in
his pleadings that have not been resolved. On October 24, 2011, appellant filed a
supplemental petition raising new claims, including a challenge to the validity of the
attorney’s fee agreement and note at the center of the parties’ dispute, and requests for fee
forfeiture and attorney’s fees.

We conclude that the order signed July 27, 2011, is interlocutory, and we lack
jurisdiction over this attempted appeal. Appellees’ motion to dismiss is granted.
Accordingly, the appeal is ordered dismissed. Appellant’s motion for extension of time to
file his notice of appeal is denied as moot.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.

3